KANSAS SENATORSHIP. 


X 

ADY vs. MARTIN. 


1. Resolution authorizing Committee on Privileges and Elections to investigate the 

right of Joseph W. Ady to a seat as Senator from Kansas. 

2. Resolution of Mr. Chandler. Referred to committee, August 21, 1893. 

3. Petition of Joseph W. Ady, setting forth that Hon. John Martin is not entitled to 

a Seat in the Senate, and that he (Ady) is. 

4. Memorial of Joseph W. Ady, in support of the petition for an investigation of the 

election of United States Senator in the State of Kansas to fill the vacancy 
caused by the death of the late Senator Plumb 

5. Memorial of 77 members Kansas legislature, rel< ing to the election of a United 

States Senator to fill vacancy caused by the e, T h of the late Senator Plumb. 

6. Statement of Hon. Joseph W. Ady to Committee on Privileges and Elections. 

7. Statement of Hon. John Martin in the matter of the memorial of Ady for an 

investigation, etc. 

8. Order of the committee as to testimony, etc., by Ady and Martin. 

1 . 

RESOLUTION. 

Revolved, That the Committee on Privileges and Elections, or any 
subcommittee thereof, be authorized to investigate the right of Mr. 
Joseph W. Ady, who claims a seat in this body as Senator from Kansas, 
and, if in their judgment it be necessary, to employ a stenographer, 
send for persons and papers, to administer oaths, and to sit during the 
recess of the Senate, the expense thereof to be paid from the contingent 
fund of the Senate. / 

Adopted April 14, 1893. / 

f 

/ 

) 

2 . 

Resolved , That there was no lawful election of a United States Sena 
tor from Kansas by the joint assembly which met on January 25, 1893 
and that John Martin is not entitled to a seat as Senator from the State 
of Kansas. 

August 21, 1893, referred to the Committee on Privileges and Elec- 
tions. 





9 




& 


,c \ 


v 




Petition of Joseph W. Ady setting forth that Hon. John Martin is not 
entitled to a seat in the Senate and that he (Ady) is. 

April 3,1893, referred to the Committee on Privileges and Elections. 
To the Senate of the United States: 

I hereby claim that Hon. John Martin was never duly elected Sena¬ 
tor from Kansas, and that I was so duly elected for term beginning 
March 4, 1893, and desire to be admitted to a seat in the Senate accord¬ 
ingly. 

Joseph W. Ady. 


To the Senate of the United States , Washington , I). C.: 

We, your petitioners, respectfully request that the election of United 
States Senator in the State of Kansas during the month of January 
last, and the proceedings in connection therewith, whereby Hon. John 
Martin was declared to be elected United States Senator from the State 
of Kansas to fill the unexpired term of the late Hon. Preston B. Plumb, 
be inquired into by your honorable body. 

I. It is claimed that Hon. John Martin did not receive a majority of 
the legally qualified members of the senate and house of representa¬ 
tives of the State of Kansas. 

II. It is further claimed that Hon. Joseph W. Ady did receive a 
majority of the legally qualified members of the senate and house of 
representatives of the State of Kansas. 

III. It is further claimed that 57 persons who had received certificates 
of election to the house of representatives of the State of Kansas had 
never, at the time of casting their votes for United States Senator, in 
any manner identified themselves with or recognized the legally con¬ 
stituted house of representatives of said State, and that the Hon. John 
Martin was elected by the Ad of the votes of such persons, and that 
without the votes of such persons he was not elected. 

IV. It is further claimed that the Hon. Joseph W. Ady received a 
majority of the votes cast by persons who held certificates as members 
of the senate and house of representatives of the State of Kansas, 
and who at and prior to the time of casting their votes for United 
States Senator had identified themselves with thb legally constituted 

mate and house of representatives of the State of Kansas. 

Vs this question is of great and serious importance to our State we 

A' ion your honorable body to investigate the election and determine 
petit ’f anyone, was legally elected as United States Senator from the 
who, V Kansas. 

State oi\ )Ur petitioners will ever pray. 

And yo^ Peters, 

S. K*. A7z>/i 


Newton , Kans. 
_ 'AV. Cause, 

Kobt. v Wichita , Kans. 

„ „ tont Smith, 

Fred Dev ym.sAy, Kans. 

J. L. Martiv Kans. 
Hutelnn ’ 

J. W. PATTERSO.’ K 

NewM J ^ ans ' 


< c < 


P. M. Hoisinoton, 

Newton , Kans. 
F. D. Tripp, 

Newton , Kans. 
J. C. Nicholson, 

Newton , Kans. 
James W. Hurst, 

Newton , Kans. 

AUG 17 1907 
D. of D. 



3 




4 . 

Senate Mis. Doc. No. 37, Fifty-third Congress, special session. 


April 10, 1893.—Deferred to tlie Committee on Privileges and Elections and ordered 

to be printed. 


Mr. Hoar presented the following: 

MEMORIAL OF JOSEPH W. ADY IN SUPPORT OF THE PETITION 
FOR AN INVESTIGATION OF THE ELECTION OF UNITED STATES 
SENATOR IN THE STATE OF KANSAS TO FILL THE VACANCY 
CAUSED BY THE DEATH OF THE LATE SENATOR PLUMB. 


To the Senate of the United States: 

In support of the petition herewith filed for an investigation of the 
election of United States Senator from the State of Kansas, to fill the 
vacancy caused by the death of the late Senator Preston B. Plumb, 
I beg leave to submit the following consideration: 

The senate of the State of Kansas consists of 40 members, and was 
duly organized on the 10th day of January, 1893. The house of repre¬ 
sentatives, under our constitution, consists of 125 members. On the 
10th day of January, 1893, the date on which the house should have 
organized, 125 gentlemen held certificates of election to the house of 
representatives and were entitled to participate in the organization 
thereof. At the hour of noon on said day 04 persons holding certificates 
of election met and organized the house of representatives in due form,, 
electing Hon. George L. Douglass speaker and Frank Brown chief clerk. 

On the 13th day of January, 1893, 3 Democratic members, elected to 
the house of representatives, took their seats in the house of which Mr. 
Douglass was speaker. The house, immediately after its organization, 
communicated with the governor and senate and notified them of its 
organization. From that time forth the 64 members, together with the 
3 Democratic members who took their seats in the house, continued 
and maintained their organization and transacted business by the intro¬ 
duction of bills, etc. The remaining 58 members-elect of the house of 
representatives, who held certificates of election, never took their 
seats in the house of representatives so organized, never answered to 
the roll call thereof, never in any way participated in any of its pro¬ 
ceedings, and continuously denied its legal existence as a house of rep¬ 
resentatives until after the decision of the supreme court of the State 
of Kansas in the case of Gunn, ex parte , which was rendered on the 25th 
day of February, 1893, declaring the so-called Douglass house the legal 
house of representatives. On the contrary, these 58 persons assum¬ 
ing to be members-elect, together with 10 other persons who made no 
pretense of holding certificates of election, on the 10th day oi January, 
1893, assembled and organized a separate and distinct pretended house 
of representatives with J. M. Dunsmore as speaker and Ben C. Kick 





4 


as chief clerk, and continued to act therein, and deny the authority of 
the house of representatives until after the decision above referred to 
and until the 28th day of February, 1893, when they took their seats in 
the house of representatives and became members thereof. 

During the period of time between the 10th day of January and the 
28th day of February the house of representatives and the revolu¬ 
tionary body, constituted in the manner before stated, met daily in 
Representative Hall and maintained their separate organizations, each 
assuming to transact business as the house of representatives of this 
State, but neither recognizing the existence or authority of the other. 

At the joint assembly for election of United States Senator, the 
senate, consisting of 40 members, came into the Hall of Representa¬ 
tives at 12 o’clock in., and took their seats among the members of these 
conflicting organizations, whereupon Hon. Percy Daniels, lieutenant- 
governor, assuming to act as the president of the joint assembly, di¬ 
rected a roll call of the senate by its secretary, to which 25 members 
responded, 24 of whom voted for John Martin and one for M. W. Cobun. 
He then directed Ben C. Rich to call the roll of the Dunsmore house, 
constituted as before stated, to which 56 persons holding certificates of 
election (but who had never taken their seats in the legal house of 
representatives), and 10 other persons who assumed from the com¬ 
mencement to act together with the 58 persons who organized the 
Dunsmore house, answered. 

Fifty-one members of the Dunsmore house who held certificates of 
election and 9 of the 10 persons who did not hold certificates of elec¬ 
tion voted for John Martin for United States Senator, making a total 
of 84 votes for him (if the votes of the 51 persons who had never taken 
their seats in the house and the 9 persons who held no certificates of 
election are to be considered members of the legislature and entitled to 
vote). Of these 84 votes, 75 held certificates of election. 

On conclusion of the roll call by Mr. Rich, Mr. Rosenthal, a Demo¬ 
cratic member, and Mr. Wilson, an Independent, each occupying seats 
in the house of representatives of which Mr. Douglass was speaker, 
arose and addressed the lieutenant-governor and asked leave to vote; 
permission being granted, they each voted for Mr. Martin, making his 
total vote 86, as follows: 

Votes. 


From the senate. 24 

From the Douglass house. 2 

From the Dunsmore house, with certificates of election. 51 

From the Dunsmore house, with no certificates.. 9 


Immediately after Rosenthal and Wilson had cast their votes the 
lieutenant-governor called attention of members present to a joint rule 
which required all members present to vote. Thereupon Senator 
Baker, from Leavenworth County, arose, addressed the chair, was 
recognized, and asked the privilege to vote; the chair thereupon in¬ 
formed Mr. Baker that he was out of order, whereupon Mr. Baker 
demanded the right to vote in that joint assembly on behalf of himself 
and 14 other senators and 65 members of the house of representatives 
over which Mr. Douglass presided and who had not yet voted. The 
presiding officer again declared him out of order, declared the result of 
the ballot, declared Mr. Martin elected and the joint assembly dis¬ 
solved, and abandoned the chair. 

Immediately upon this action Senator Baker presented a resolution 
declaring the facts substantially as above stated and moved that 
George L. Douglass, speaker of the house, be elected president of the 






joint assembly, and that they proceed with the election of a United 
btates ben a tor. Mr. Douglass was elected, and directed Senator Brown, 
who was elected secretary by the senators present, to call the roll of 
the senate, which was done, and 15 senators answered, casting their 
votes for Joseph W. Ady. The chair then directed the chief clerk of 
the house to call the roll of the members, to which 02 of the 07 mem¬ 
bers who had taken their seats in the house of representatives re¬ 
sponded, jin d cast their votes for Joseph W. Ady, thus giving me a 
total ot 77 votes by members duly elected, holding certificates of elec¬ 
tion, who had taken their oath of office and had continuously acted as 
members ot their respective bodies since the organization of the legis¬ 
lature, January 10, 1893. 

On the foregoing facts my contention is that legally the joint 
assembly consisted of 40 members of the Senate and the 07 persons 
who had taken their seats in and acted as members of the house of 
representatives, making a total of 107 votes. This includes all mem¬ 
bers elected to the senate and more than a constitutional majority of 
the members elected to the house of representatives. 1 insist that 
the 51 persons from the Dunsmore house who had never taken their 
seats in the house of representatives or recognized it in any manner 
were not members and had no right to vote. It goes without saying 
that the 9 other persons who voted for Mr. Martin from the Dunsmore 


house had no right to vote, as they were not elected,, held no cer¬ 
tificates, and have never been recognized or admitted into the house 
as members. If only such persons as have been elected and have 
accepted their office and taken their seats in the body to which they 
are elected are members thereof and entitled to vote, the result is as 
follows: 


Votes. 


Joseph W. Ady. 77 

John Martin. 26 

M. W. Cob an. 1 

Absent and not voting. 3 


The technical objections to this view are— 

First. That before the lieutenant-governor left the chair he declared 
that Mr. Martin had received a majority of all the votes cast and was 
duly elected. 

Second. In the subsequent proceedings over which Mr. Douglass 
presided after the lieutenant-governor had abandoned the chair, and 
which were taken in order to allow members, who had been refused the 
right to vote by the lieutenant-governor, to cast their vote for United 
States Senator, Mr. Douglass declared that no one had received a ma¬ 
jority of the votes cast by the joint assembly, and that there was no 
election. 

Mr. Douglass made this declaration under the mistaken view that 
the 58 persons w r ho held certificates of election, but who had never 
taken their seats in the house of representatives, had a right to vote 
in the joint assembly, which I deny. It is legal votes, and not the 
declaration of presiding officers that elects Senators. 

The act of Congress providing for a joint assembly for the election 
of United States Senator contemplates that only members holding 
seats in the two houses shall have a right to vote. In the first instance, 
uijder the law of Congress the two houses act separately. In this 
action it is certainly not contemplated that any person not holding a 
seat in the house with which he assumes to act can vote. If there is 
no election in the separate action, then u the members of the two 






6 

houses shall convene in joint assembly, etc., and proceed to the election 
of a Senator.” 

You will pardon me for suggesting that all authorities distinguish 
between a u member elect” and a member” who has taken his seat in 
the house. Of course a person who is acting in a legally constituted 
house of representatives is presumed to be a legal member thereof, 
but can there be any such assumption in the case of the 58 gentlemen 
holding certificates who have never presented themselves to the house 
and of whose right to a seat in the house that organization is the ex¬ 
clusive judge. They may never intend to take seats in that house. 
They have, in fact, persistently refused to do so, and identified them¬ 
selves with the organization which has attempted to usurp the rights 
of the house. It is equally clear that members elect can not be com¬ 
pelled to take upon themselves the duties of members. As said in the 
report of Mr. Dawes in the cases of Mr. Schenck and Mr. Blair: 

No one can be made a member against liis will. He may be elected without his 
consent or knowledge, for he may be in a foreign land; but to become a member, he 
must not only be elected, but he must take the oath of office. (McCreary on Elec¬ 
tions, Sec. 242, 2d edition.) 

If a member elect refuse to qualify he will be discharged from being a member with 
more or less obloquy, or none at all, according to the circumstances of his case, but 
he can not be expelled because he can not as yet discharge the duties of a member. 
(Cushing’s Law and Practice, section 472.) 

Until the member has qualified and taken his seat the body to which he was 
elected as a member has no jurisdiction over him to compel a performance of duties, 
neither can he be admitted to the privileges of the body. (McCrearv on Elections, 
216 .) 

Until lie has taken his seat in the House and been recognized as a 
member thereof he can not be regarded as a member subject to the 
duties, rights and privileges of the body, notwithstanding the fact that 
he may have been elected to the office. 

Referring again to the report of Mr. Dawes (Refiort of Committees, 
First Session, Thirty-eighth Congress, No. 110, page 7), quoting from 
Simeon in his work on elections— 

It (referring to the statute concerning membership in Parliament) clearly refers 
only to a complete member who has actually taken his seat and has the power of act¬ 
ing or voting, but before the member has taken his seat according to the forms of 
the House (especially since the oaths required to be taken), he can not exercise his 
privilege. 

In the contested election cases reported by Mr. Taft I find the rule 
that the person elected is not a member of the Senate of the United 
States until he takes his oath of office and takes his seat in that body 
is fully recognized. I observe also that Senator Perkius continued to 
occupy his seat until the close of the last session, notwithstanding the 
fact that Mr. Martin was present in the city of Washington duly armed 
with his certificate of election. 

In view of the fact that since the joint convention for the election of 
United States Senator the supreme court of this State has judicially 
determined that the so-called Douglass house was the house of repre¬ 
sentatives of this State, and, therefore, that the so-called Dunsmore 
house was a revolutionary body, it follows as a necessary conclusion 
that the house of representatives, at the time of that election, consisted 
of 67 members, and that 60 of the votes cast and counted for Mr. Martin 
were cast by persons who were not members of the house and not enti 
led to vote. 

Believing, as I do, that the admission of Mr. Martin to his seat in the 
United States Senate is a recognition of the revolutionary and dis¬ 
orderly practices that have recently distracted our State government, I 


7 


am constrained to insist that the Senate shall investigate his title and 
declare whether persons who identify themselves with a revolutionary 
body and participated in violent and insurrectionary proceedings of 
the character indulged in in our State may, notwithstanding the fact 
that they are continuously defying the authority of the house, be con¬ 
sidered members thereof and exercise the high privilege of acting as 
electors of a United States Senator. 

Respectfully submitted, 

Joseph W. Ady. 


[Decision of the supreme court of the State of Kansas.] 

THE CONSTITUTIONALITY OF THE HOUSE OF REPRESENTATIVES 
OF THE STATE OF KANSAS (KNOWN AS THE DOUGLASS HOUSE) 
DISCUSSED AND DECIDED.—THE CASE OF IN RE GUNN.—PROCEED¬ 
INGS IN HABEAS CORPUS.—THE WRITTEN OPINION OF CHIEF JUS¬ 
TICE HORTON CONCURRED IN BY MR. JUSTICE JOHNSTON.—FILED 
MARCH 11, 1893. 


[Eugene Hagan, for petitioner. Noah Allen, assistant attorney-general, G. C. Clemens, Prank Dos- 

ter, and W. C. Webb, for the governor. T. E. Garver, Chester I. Long, W. H. Eossington, and 

David Overmyer, for resx>ondent.] 

In re Gunn. (Supreme court of Kansas, March 11, 1893.) Supreme court—Origi¬ 
nal jurisdiction—Habeas corpus—Legislature—Commitment for contempt. 

[From the Paciiic Reporter, vol. 32, pages 471-488.] 

1. The constitution of the State ordains that the supreme court shall have original 
jurisdiction in proceedings in habeas corpus. 

2. Under the statutes of this State, no court or judge shall inquire into the legality 
of any judgment or process whereby the petitioner is in custody, or discharge him, 
when the term of commitment has not expired, upon any process issued for any con¬ 
tempt of any officer or body having authority to commit, if such contempt does not 
arise upon proceedings to enforce the remedy of a party. 

3. The supreme court has power to inquire on habeas corpus into the lawfulness 
of imprisonment by an order or resolution of the house of representatives of the 
State. 

4. The house of representatives of Kansas has power to compel witnesses to attend 
and testify before tlie bouse, or one of its committees, having an election contest 
concerning a member thereof properly pending before it for investigation. 

5. If a witness duly subpoenaed in this State to testify before the bouse of repre¬ 
sentatives of Kansas, ora committee of that house, having a contest of election con¬ 
cerning the seat of a membor thereof properly pending before it for investigation, 
willfully refuses to attend or testify, he is in contempt of the authority of the bouse, 
for which the house may cause him to he arrested and brought before that body, 
and such body may, upon proper proceedings, lawfully imprison the contumacious 
witness. 

6. The constitution of the State ordains that the legislative power of the State 
shall be vested iu the house of representatives and the senate; that the number of 
representatives shall never exceed 125; that a majority of each house shall consti¬ 
tute a quorum, and that, each house shall establish its own rules. 

7. Under the constitution and statutes, the house of representatives consists of 125 
members, and 63, being a majority, constitutes a quorum. 

8. When a number of persons come together at the hall of the house of represent¬ 
atives in the State capitol, at a regular session, commencing on the second Tuesday 
of January of each alternate year, claiming to he members of the house of represent¬ 
atives, those persons who hold certificates of membership from the secretary of state, 
certified by him under his seal of office, in accordance with the determination of the 
State board of canvassers, are the only persons entitled to participate in the organi¬ 
zation of the house. Such certificates of election confer title upon the holders 
thereof, governing their associates and every body who has a lawful duty to deter- 



8 


mine who are elected representatives, until there can he an adjudication by the house 
itself to the contrary. 

9. Where a majority of the members of the house of representatives in this State, 
each one of whom holds a certificate of membership, prescribed by the statute, 
meets at the usual and customary hour in the hall of the house of representatives 
at the State c-apitol, at the regular time for the commencement of a session of the 
legislature, and perfects an organization as a house, appoints its committees, and 
initiates legislation, such body is duly organized, and is the constitutional house of 
representatives, although the governor, or senate, or both, refuse to communicate 
with or recognize it as the house of representatives. Such a house of representa¬ 
tives, so constituted and organized, may keep and publish a journal of it's proceed¬ 
ings, and such journal, when properly kept and published, imports absolute verity. 
Such a house also has the power, under the constitution and laws, to imprison for 
contempt contumacious witnesses in proper proceedings pending before it. 

10. The constitutional house of representatives of the State, regularly organized, 
having a quorum, and transacting business m the hall of the house of representa¬ 
tives at the capitol. provided for its sessions, can not be ousted or destroyed as a 
house by the refusal or neglect of the governor, or of the State senate, or of both, 
to communicate with it. 

11. If an office is filled, and the duties pertaining thereto are performed by the 
officer or a body de jure, another person or body, although claiming the office under 
color of title, can not become an officer or body de facto, and an officer or body claim¬ 
ing to be such de facto can not oust or destroy the power of an officer or body de 
jure by taking partial possession of tbe room or office where the officer or body de 
jure is in possession and transacting business. 

12. Where the constitutional house of representatives of the State convenes at the 
time and place provided by law, perfects its organization, appoints its committees, 
and initiates legislation, and continues to transact business, its power is not usurped 
or destroyed as the house of representatives by the organization in the same room 
of another pretended house of representatives, composed of 58 members, having 
certificates of election; but being less than a constitutional quorum, although such 
body is recognized by the governor of the State and by the State senate as a house, 
or as a de facto house of representatives. Nor can such pretended body forbid or 
prevent tbe constitutional bouse of representatives from exercising its power, under 
tbe constitution and laws, to imprison for contempt. 

13. “The house of representatives is not the final judge of its own powers and 
privileges in cases in which the rights and liberties of the subject are concerned; 
but the legality of its action may be examined and determined by this court. That 
house is not the legislature, but only a part of it, and is therefore subject in its 
action to the laws, in common with all other bodies, officers, and tribunals within 
this State. Especially is it competent and proper for this court to consider whether 
its proceedings are in conformity with the constitution and laws, because, living- 
under a written constitution, no branch or department of the Government is supreme; 
and it is the-province and duty of the judicial department to determine, incases 
regularly brought before them, whether the powers of any branch of the Govern¬ 
ment, and even those of the legislature in the enactment of laws, have been exer¬ 
cised in conformity with the constitution, and, if they have not been, to treat their 
acts as null and void.*’ Burnham v. Morrissey, 14 Gray, 226. 

(Syllabus by the court.) 


Original proceedings in habeas corpus by L. C. Gunn to obtain his 
discharge from an arrest made by G. 0. Clevenger.acting sergeant-at- 
arms of the house of representatives of the State, on the ground that 
such house was an illegal body, and such officer had no authority to 
make the arrest. Writ denied. 

Horton, 0. J. On the loth of February of the present year, L. 0, 
Gunn was arrested by 0. C. Clevenger, and soon thereafter he presented 
his petition to one of the justices of this court asking to be discharged 
from arrest and restraint, upon the ground that Clevenger had no au¬ 
thority to arrest or detain him. He alleged that Clevenger was acting 
as the sergeant-at-arms of an alleged house of representatives that had 
no authority to act as a house. The warrant issued to Clevenger as 
sergeant-at-arms for the arrest of Gunn was signed by George L. Doug¬ 
lass, as speaker, and attested by Frank L. Brown, as chief clerk, and 
was attached to the application. Subsequently a return was tiled by 
Clevenger, as sergeant-at-arms, justifying the arrest of Gunn, and al¬ 
leging that his detention was lawful, upon the ground that he (Oleven- 


9 


ger) was the sergeant-at-arms of the constitutional house of represent¬ 
atives of the State of Kansas, duly organized by the election of Doug¬ 
lass as speaker, Brown as chief clerk, with the other proper officers, 
and that Cfunn refused to obey a subpoena personally served upon him 
to appear before the committee on elections, and testify as a witness 
in a proper investigation then pending before such committee of the 
house. To that return a traverse has been filed by the petitioner, who 
has associated with his attorney counsel representing the governor of 
the State. Upon the allegations of the pleadings thus framed, this 
court has a proper matter before it to hear and determine. The con¬ 
stitution of the State gives this court original jurisdiction in habeas 
corpus, and this is a proceeding of that character. 

The liberty of a citizen is in controversy. But the statute of this 
State provides that no court or judge shall inquire into the legality of 
any judgment or process whereby a party is in custody, or discharge 
him, when the term of commitment has not expired, in the following 
case, among others: Third. For any contempt of any court, officer, or 
body having authority to commit. Therefore we have before us, neces¬ 
sary for our determination, the question whether the body or the house 
which authorized Clevenger as sergeant-at-arms to arrest and detain 
Gunn had any legal or constitutional authority so to do. If there were 
one house only, or the proceedings of one house only, to consider, our 
duty in this matter would be plain and easy* but it appears from the 
journals presented to us that on January 10, 1893 (the day appointed 
for the organization of the house of representatives of the State of Kan¬ 
sas), there met and attempted to organize at the capitol, in representa¬ 
tive hall, two houses, which since that time have acted separately and 
independently of each other. 

We will examine briefly the organization, or attempted organization, 
of these two alleged houses. Before doing so, however, it is best to 
understand how a house of representatives may be legally organized. 
Judge McCrary, in his work upon elections, in section 509, says: “It 
is to be observed in the outset that when a number of persons come 
together, claiming to be members of a legislative body, those persons 
who hold the usual credentials of membership are alone entitled to 
participate in that organization; for it is, as we have had occasion sev¬ 
eral times to repeat, a well-settled rule that, where there has been an 
authorized election for an oflice, the certificate of election, which is 
sanctioned by law or usage, is the prima facie written title to that 
office.” Judge McCrary, the writer of these words, occupied for several 
terms a seat in the House of Representatives at Washington. He was 
chairman for many years in that body of the Committee upon Elections. 
Subsequently he was a member of President Hayes’s cabinet, and later 
he was the honored judge of the United States circuit court for the- 
eighth circuit, embracing Kansas. His book is a standard work, both 
from his ability and experience, and acknowledged to be the leading 
authority in this country upon the questions therein discussed. • 

But, again, we have what is known as a “ standard work” on par¬ 
liamentary or legislative practice. It is found in almost every public 
library, is examined and referred to by every legislative assembly and 
every congressional body, and its title is “ Cushing’s Law and Practice 
of Legislative Assemblies.” Section 229 of that work reads: “The 
right to assume the functions of a member in the first instance, and to 
participate in the preliminary proceedings and organization, depends 
wholly and exclusively upon the returns or certificates of election.” 
And in section 240 it is said: “The principles of parliamentary law ap- 


10 


plicable to the question are perfectly simple and plain, founded in the 
very nature of things, established by the uniform imactice and authority 
of parliament, confirmed by reason and analogy. These principles are 
as follows: First, that every person duly returned is a member, whether 
legally elected or not, untii his election is set aside; second, that no 
person who is not duly returned is a member, although legally elected, 
until his election is established; third, that conflicting claimants, both 
in form legally returned [that would be where two persons had cer¬ 
tificates], are neither of them entitled to be considered as members until 
the question between them has been settled; fourth, that those mem¬ 
bers who are duly returned, and they alone—the members whose rights 
are to be determined being excluded—constitute the judicial tribunal 
for the decision of all questions of this nature.” 

Upon this question of certificates we also cite the contest in the 
United States Senate from Montana, which is the latest utterance of 
the highest legislative body in this land. In the report of the majority 
of the committee it is said: “The majority of the committee are of 
opinion that, if this body of persons had lawful and constitutional cer¬ 
tificates of their election, that title is a good title against all the world, 
governing their associates in that body, governing the Senate, govern¬ 
ing everybody who has a lawful duty to determine who are lawfully 
elected representatives, until there can be an adjudication by the house 
itself to the contrary; and that nobody can be heard to say, and that 
no authority can be permitted to inquire into or determine, the actual 
facts of the election as against that title.” 51st Cong. 1st Sess. (21 
Cong. Record, pt. 3, pp. 2906-2910). 

The majority of the committee were all Republican members of the 
United States Senate; but Senator Gray, from Delaware, one of the 
most distinguished lawyers and Democrats of that body, made a 
minority report, and in such report admitted the rule proclaimed by 
the majority of the committee concerning certificates of election issued 
to members of a legislature. In his report he said: “I may say, for 
the minority of the committee, that we accept as a postulate the propo¬ 
sition laid down by the Senator from Massachusetts, and do not differ 
at all, in considering this case, from him in the position that we should 
seek here, in the first place, to discover the lawful body clothed with 
legislative power who has chosen a Senator, and that, to determine 
whether it be such lawful body, we shall be bound, in the first instance, 
by the fact that such body is composed of members who hold creden¬ 
tials from an officer or board clothed with authority in the premises to 
make such credentials.” This subject has also received the recent at¬ 
tention of the supreme court of Nebraska in a casein which the opinion 
was handed down as late as the 17th of January of the present year, 
upon a matter involving the certificate of the election of a member of 
the legislature. 

The court said: “ It is contemplated that each house of the legisla¬ 
ture shall be organized by the persons who are prirna facie members 
thereof. It requires no argument to prove the disastrous consequences 
of a different construction of the constitution.” State v. Van Camp, 
54 N. W., Rep. 114. We may add that the scenes which have occurred 
in this eapitol during the past four weeks are sufficient justification for 
the view of the supreme court of Nebraska. But, more than this, our 
own statutes clearly provide that the legislature—that the senate and 
the house of representatives, when they convene—shall, in the first 
instance, be constituted only of those members who have certificates of 
election. They provide that, after an election is held in November, 


11 


speedy steps shall be taken for the returns of the county canvassing 
boards. Then the clerks of these boards shall make returns to the 
State board of canvassers; and then, after a certain length of time, 
the State board of canvassers shall make an examination of these re¬ 
turns, and order certificates to the persons appearing to be elected. 
Further, the State of Kansas has been in existence for over 30 years. 
It is recognized everywhere that practice and usage are to be consid¬ 
ered upon questions of this character. It has been the universal prac¬ 
tice and usage of the legislative houses of Kansas to be organized by 
the admission, in the first instance, of persons holding certificates of 
election. This has been the practice. Now, against this, what can be 
said, and what authorities are brought? 

A case is cited from Maine (70 Me. 009), and, in our view, with the 
exception of a few words in the opinion, we concur in all that is said 
by the supreme court of that State. In that State the returns were 
made to the State canvassing board. Under the authority of the con¬ 
stitution, the State officials submitted certain questions to the supreme 
court as to their duty concerning the canvass of those returns. The 
supreme court of Maine gave advice, which, in substance, was that the 
State board should canvass those returns as they appeared upon their 
face; that they Avere ministerial officers only, and had no authority 
whatever to go back of the returns, or to hear and act upon other evi¬ 
dence. In violation of the constitution of that State, in violation of the 
statutes of the State, and contrary to the express advice of the supreme 
court of the State, the board of canvassers refused to accept the returns 
duly filed with them. Under such a condition of affairs, the supreme 
court of Maine ruled that those returns were better evidence than the 
fraudulent certificates issued bv the State board of canvassers, in vio- 
lation of the constitution, in violation of the statutes, and contrary to 
the advice of the supreme court. 

In this case no such condition of affairs appears. There lias been 
offered in evidence the certified list of members who appear to have 
been elected. Accompanying that certificate is a statement of the re¬ 
turns on file iu the office of secretary of state with the number of votes 
each member received. We should here say that, while there has been 
much discussion about what fraudulent canvassing boards might do, 
and what frauds canvassing boards might commit, there has not been 
presented in this case any evidence showing that the returns of elec¬ 
tion on file in the office of the secretary of state could have been can¬ 
vassed in any manner other than they Avere canvassed and declared. 

But, more than this, there has been presented what is known as the 
“ revised journal of the Dunsmore house.” We judge that the journal 
has been carefully prepared, and that it is attempted therein to state 
fully Axliat occurred, according tothevieAvs of the parties or of the body 
under whose order it was prepared and approved; yet the journal, day 
after day, seems to recognize that only certified members have author¬ 
ity to act. We read: “On the call of the roll received from the secre¬ 
tary of state the following members were present and answered to tlieir 
names.” And it gives the names of 58. “ The folloAving members were 

present and did not respond to the call of the roll;” 57. Then it says: 
“ Total number of members present, 115;” being more than a constitu¬ 
tional quorum. Therefore this journal at that place only counts the 
members who appear upon the roll of the secretary of state. It says 
the number was 115—“fifty-eight voting, answering the call, and fifty- 
seven not answering the call.” It then states: “The following-named 


12 


contestants for seats were presentbut does not include them in the 
quorum or in the number of 115. It says they numbered 10. 

Again, on the second day of the meeting of what is known as the 
“Dunsmore house,” we read: “The house met pursuant to adjourn¬ 
ment. Speaker Dunsmore in the chair. The roll was called, and the 
following-named members answered to their names;” and the number 
is 57. That is all that answered. Then it says: “The following mem¬ 
bers were present, but did not answer to the roll call;” and they were 
16. And then it says: “The whole number of members present was 
seventy-three”—16 and 57, being 10 more than a constitutional quo¬ 
rum ; and every day of this journal the same record is kept up until 
after the report of the committee on elections and certain other persons 
were admitted. So, not only do the authorities hold that the persons 
having the certificates of elections are the ones to participate in the 
organization of the house of representatives, but the revised journal 
of the llunsmore house shows that its members recognized that rule, if 
this revision is correct. 

We know that Mr. Mich has made some different statements. We 
know that a certain journal presented here, of the same body, reads 
differently. We are now accepting the revised journal as the true 
Statement of the condition of affairs in the Dunsmore house. Of course, 
the petitioner can not object to that journal. So we say, not only do 
the authorities, parliamentary and legislative, sustain the theory that 
the persons having certificates are the ones to organize; not only do 
the practice and usage prevailing in Kansas since its admission as a 
State sustain that rule, but the newly-prepared journal of the Duns¬ 
more house recognizes this, and states, not that the contestants voted, 
not that the contestants appeared for the purpose of being counted, but 
excludes them all the time, until after they were admitted upon a re¬ 
port of the election committee, and it counts only those who answered 
the roll call, and then counts several who did not answer. It seems 
that while 10 contestants are marked in the Dunsmore journal as pres¬ 
ent, but not voting, 10 names on the certified roll are wholly omitted. 
Any rightful reason for such omission does not appear. We can not 
perceive any valid reason for such omission, even if 10 certified mem¬ 
bers had their seats contested. 

Every person duly returned to a house of representatives, and having 
a certificate, is a member thereof, whether elected or not, whether 
eligible or not, until his election is set aside. And this must be set 
aside by the house, not by the individual members before organization, 
not by any one member, not by any contestant, not by any mob. Be¬ 
fore organization, a few members properly elected, meeting in caucus 
or otherwise, can not pass upon the “elections, returns, and qualifica¬ 
tions” of the members of the house to be thereafter organized. If one 
member, before organization, can object to any other member duly re¬ 
turned and having a certificate, then all members can be objected to, 
and there could be no one left to organize any house. In McCrary 
on Elections (2d Ed., § 201) the practice is thus stated: “Where two 
or more persons claim the same office, and where a judicial investiga¬ 
tion is required to settle the contest upon the merits, it i§ often nec¬ 
essary to determine which of the claimants shall be permitted to 
qualify and to exercise the functions of the office pending such inves¬ 
tigation. If the office were to remain vacant pending the contest, it 
might frequently happen that the greater part of the term would ex¬ 
pire before it could be filled; and thus the interests of the people 
might suffer for the want of a public officer. Besides, if the mere in- 


13 


stitution of a contest were deemed sufficient to prevent tlie swearing in 
of tlie person holding the usual credentials, it is easy to see that very 
great and serious injustice might be done. * 

If this were the rule, it would only be necessary for an evil-disposed 
person to contest the right of his successful rival, and to protract the 
contest as long as possible, in order to deprive the latter of his office 
for at least a part of the term; and this might be done by a contest 
having little or no merit on hi* side, for it would be impossible to dis¬ 
cover in advance of an investigation the absence of merit. And, again, 
if the party holding the ordinary credentials to an office could be kept 
out of the office by the mere institution of a contest, the organization of 
a legislative body—such, for example, as the House of Representatives 
of the United States—might be altogether prevented by instituting 
contests against a majority of the members; or, what is more to be ap¬ 
prehended, the relative strength of political parties in such a body 
might be changed by instituting contests against members of one or 
the other of such parties. These considerations have made it necessary 
to adopt and to adhere to the rule that the person holding the ordinary 
credentials shall be qualified and allowed to act pending a contest and 
until a decision can be had on the merits.” 

Now, why should not this principle be followed? Why should not 
this rule, which is universal throughout the States of this Union, and 
which is accepted and adopted by Congress, be followed in the State 
of Kansas? It has history to sustain it. It has the wisdom of long 
years of legislative experience to sustain it. It has reason to sustain 
it. And let us here remark that in every State of this Union where, 
through political excitement or personal contests, a different rule has 
been adopted, disturbance, violence, and almost bloodshed have al¬ 
ways occurred. You take Alabama, where they attempted to hold two 
independent houses, and disastrous consequences followed, until pub¬ 
lic opinion compelled those two bodies to meet together and act in har¬ 
mony. You take Montana, where they attempted to disregard this 
well-settled rule, and disturbance and conflict occurred. You take 
Maine, where the State board of canvassers refused to canvass the re¬ 
turns on file in the office of the secretary of state as required by the 
constitution, and bloodshed seemed at times imminent; but public 
opinion in that State compelled those two separate bodies to unite and 
act together for the benefit of the State, and not for the benefit of any 
party. 

You take the State of Kansas for the past three or four weeks, and 
will anyone declare that the variation of this well-settled rule, or this 
recognized practice of all legislative assemblies, has conduced to the 
peace, to the quiet, and to the good order of the citizens of Kansas, or 
to the peace and good order of the legislative assembly of the State? 
Then why not, if this court has the power—and we will come to that 
hereafter—why not, if this court has the power, shall it not recognize 
that house which has followed the usual and ordinary practice of all 
legislative assemblies in organizing ? The reasons are stronger in this 
State for permitting only those persons having certificates of election 
to participate in the organization of Either house of the legislature, be¬ 
cause, under the rule declared by this court, a board of canvassers can 
not act arbitrarily or fraudulently if prompt proceedings are taken in the 
courts to compel them to discharge their duty properly. u Where a 
canvassing board wrongfully neglects or refuses to canvass returns 
which are regular in form, the courts may, by mandamus, compel the 
board to canvass and declare the result from the face of the returns; 


14 


and if a canvass has been wrongfully or improperly made, and the 
board has adjourned sine die, the courts may compel it to reassemble 
and make a correct canvass of all the returns before it at the time of 
the first canvass.” Lewis v. Commissioners, 16 Kan., 102: Rosenthal 
v. Board (Kan.), 32 Pac. Rep., 129. 

In some of the States a contrary doctrine lias been declared; but the 
rule in this State affords better protection against any canvassing board 
acting corruptly, fraudulently, or wrongfully. It may seem plausible, 
without full consideration, to say that only those members of the legis¬ 
lature who are actually elected, whether having certificates or not, are 
the persons that should organize or hold seats in either house. But 
some method of organization is necessary; some written title must be 
created or exhibited before any person can be regarded as having a 
prima facie right to a seat in the legislature. Those persons having cer¬ 
tificates, and only those, must be permitted to organize, and no author¬ 
ity can change or overthrow that right or prima facie written title of a 
member, except the house itself; and the members of the house can not 
be regarded as a legal or constitutional house until there is some tem¬ 
porary or permanent organization by a majority thereof; that is, by 63 
members having certificates of election. The certificates of election give 
a title to the members holding the same, which must govern their asso¬ 
ciates until there can be an adjudication by the house itself to the con¬ 
trary; that is, by a constitutional house having a quorum. 

The journal of the Dunsmore house states the number of persons 
who were present and answered the roll call, and then states how 
many persons were present who did not answer, and the quorum is 
made up. How? By counting the persons who answered to the roll 
call. That is right—sometimes 55, sometimes 57, and sometimes 58; 
and then by counting, in addition, as the journal says, persons upon 
the roll who were present but did not vote. Can this be done? 

We know that very much has been asserted about the prevailing 
practice in Washington, in the House of Representatives, under what is 
known as the “ Reed rule,” and many persons who have not taken 
time to examine this question have said that under the Reed rule in 
any assembly, or in any legislature, or in any convention, it’ persons 
are present and do not vote or answer to their names the speaker or 
the clerk may count them in order to make a quorum. It would look 
to us that what is known as the “ Dunsmore house,” or the persons 
who prepared this revised journal acted upon this theory, because in 
no other way could they count a quorum. 

But an examination of what is known as the “Reed rule” permits no 
such thing whatever to be done. The Reed rule was a subject of in¬ 
vestigation before the Supreme Court of the United States upon what 
is known as the “Tariff* bill.” It is reported in U. S. v. Baffin, 144 
U. S., 1, 12 Sup. Ct. Rep., 507. It appears from the decision that be¬ 
fore the Speaker or the clerk counted any one present, not voting, the 
House of Representatives had expressly adopted a rule upon that 
question; and the rule is as follows: “On the demand of any member, 
or at the suggestion of the Speaker, names of members sufficient to 
make a quorum in the hall of the House, who do not vote, shall be 
noted by the clerk, and recorded in the Journal, and reported to the 
Speaker, with the names of the members voting, and be counted and 
announced in determining the presence of a quorum to do business.” 
The Supreme Court gays that after the House adopts such a rule, under 
the authority ol the House itself, the Speaker may order persons present 
and not voting to be counted to constitute a quorum; but that court did 


15 


not hold, in the absence of an express rule, that tlie Speaker or the 
clerk, or any other person, could assume that those persons, present in 
a House, who did not answer to their names on the roll call, or who did 
not vote, shall, for the purpose of a quorum, be counted as present. 
Therefore the counting of such votes in the record or journal of the 
Dunsmore house has no foundation to rest upon. 

There is no pretense that such a rule as the Heed rule was adopted 
by either of the houses. There is no pretense that the speaker of the 
Dunsmore house had any authority from the house to do wliat was 
done in this case. But, more than that, the persons who were called 
and counted as present and voting, in order to constitute a quorum in 
the Dunsmore house, were never members of the Dunsmore house— 
never recognized Mr. Dunsmore as speaker. According to the evi¬ 
dence of Mr. Dunsmore, each one of the bodies or houses, after it 
organized, acted separately, and had nothing whatever to do with the 
other. Speaker Reed never called, in order to constitute a quorum, 
the name of any person in the House of Representatives who refused 
to consider and recognize him as Speaker of that House. Even under 
such a rule as was adopted by Congress, he would not have called the 
name of any person who had not recognized that body as the consti¬ 
tutional body—the legal House. 

Something was said upon the argument of the admission in the 
Douglass house of persons not eligible to seats in the legislature. That 
matter is wholly immaterial at this time. The house, after it is organ¬ 
ized, “is the judge of the elections, returns, and qualifications of its 
own members;” but, before organizing, the persons having certificates, 
whether eligible or not, are the members to organize. Before organiz¬ 
ing, there is no one—no house—to reject or oust a member holding a 
sufficient certificate. There is no one—no house—to pass upon his 
eligibility or election. Until the house is organized, the certificate is 
the lawful title that controls. The American and English Encyclopedia 
summarizes the law of the worth of a certificate of election as follows: 
“It is settled that when it is made the duty of certain officers to can¬ 
vass the votes, and issue a ceitificate of election in favor of the suc¬ 
cessful candidate, a certificate of such officers, regular upon its face, is 
sufficient to entitle the person holding it to the possession of the office 
during an action to contest the right.” Volume 6, p. 373, c. 17; Clough 
v. Curtis, 134 U. S., 367, 10 Sup. Ct. Rep., 573; State v. Buckland, 23 
Kan., 259. B at in the case of Privett v. Bickford, 26 Kan., 52, this court 
said: 

“Upon this question [eligibility] the weight of authority seems to 
be? as in our opinion is the better doctrine, that where the disability 
concerns the holding of the office, and is not merely a disqualification 
to be elected to an office, a person who is ineligible at the election will 
be entitled to enter upon and hold the office, if his disability be removed 
or cured before the issuance of the certificate and before entering upon 
the discharge of the duties of the office for which he is elected. If a 
person may hold the office, he may be elected while he is under disqual¬ 
ification ; and if he becomes qualified after the election and before the 
holding, it is sufficient. In the one case the disqualification strikes at 
the beginning of the matter—that is, it prohibits the election of an 
ineligible candidate; in the other case the disqualification relates only 
to the holding of the office. The constitution expressly provides that 
the disability may be removed by a vote of two-thirds of all the mem¬ 
bers of both branches of the legislature. When the electors of Harper 
County voted for the plaintiff, they had the right to look at and to 


16 


build their expectations upon this provision because, although at the 
election the plaintiff was ineligible to hold office, yet they knew that 
the legislature had the right to remove the disability, and if removed, 
he was entitled to the possession of the office to which he was preferred 
by the majority of the electors. 

if our constitution provided that the plaintiff was ineligible to be 
elected, instead of being ineligible to hold office, the contention of the 
defendant would be good; but as the ineligibility is not as to the elec¬ 
tion, but only the holding of the office, such ineligibility is cured by the 
subsequent removal of the disqualification. The conclusion reached 
by us also fits the intimation in Wood v. Bartling, 16 Kan., 109, that 
where a majority of the electors vote for an ineligible candidate, the 
election is not a nullity. In England it has been held that, where elec¬ 
tors have personal and direct knowledge of the ineligibility of the ma¬ 
jority candidate, the votes cast for such a candidate are void, and the 
minority candidate is elected. In this country the great current of 
authorities sustains the doctrine that the ineligibility of the majority 
candidate does not elect the minority candidate, and this, without ref¬ 
erence to the question as to whether the voters knew of the ineligibility 
of the candidate for whom they voted. It is considered that in such a 
case the votes for the ineligible candidate do not elect him, because of 
his ineligibility; but the other or minority candidate can not be consid¬ 
ered as elected. 

Le* us now take up the organization of the two alleged houses: First 
the Douglass house. There can be no reasonable question but that 
George L. Douglass, the speaker, who signed the warrant of arrest, 
and Frank L. Brown, who attested the warrant as chief clerk, and G. 
0. Clevenger, the sergeant-at-arms, who made the arrest we are now 
investigating, were elected to their several positions by 64 members of 
the house of representatives holding certificates of election, and that a 
majority of the 125 members voting for them held certificates in ac¬ 
cordance with the returns on file in the office of the secretary of state. 
Mr. Justice Brewer, in delivering the opinion in U. S. v. Baffin, said: 
“The question, therefore, is as to the validity of this rule, and not 
what methods the speaker may, of his own motion, resort to for deter¬ 
mining the presence of a quorum, nor what matters the speaker or 
clerk may, of their own volition, place upon the journal. Neither do 
the advantages or disadvantages, the wisdom or folly, of such a rule 
present any matters for judicial consideration. With the courts the 
question is only one of power. The constitution empowers each house 
to determine its rules of proceeding. * * * The constitution pro¬ 

vides that 4 a majority of each [house] shall constitute a quorum to,do 
business.’ In other words, when a majority are preseut, the house is 
in a position to do business. Its capacity to transact business is then 
established—created by the mere presence of a majority—and does not 
depend upon the disposition or assent or action of any single member 
or fraction of the majority present. All that the constitution requires 
is the presence of a majority, and, when that majority are present, the 
power of the house arises.” 


The constitution of our State ordains that a majority of each house 
shall constitute a quorum. The house of representatives consists of 
125 members; 63 is a majority and a quorum. When a majority or quo¬ 
rum are present, the house can do business; not otherwise. A*quorum 
possesses all the powers of the who : e body, a majority of which quorum 
must, of course, govern. If less than 63 members are present in the 
house, there is no quorum. The body may adjourn from day to day, 


17 


but can not elect officers, transact business, or admit new members. Less 
tliau a quorum can not “judge of the elections’ returns, and qualifica¬ 
tions” of the members of the house. A major part of the whole of a 
liouse is necessary to constitute a quorum, and a majority of a quorum, 
of course, as we have said, may act; but, if the major part withdraw so 
as to leave no quorum, the power of the minority to act ceases. Brown 
v. District of Columbia, 127 U. S.,579, 8 Sup. Ct. JRep.,1314. Then, 
under the usual forms of law, under the universal practice adopted in 
this State and in all the legislative bodies of all the States of the Union, 
the Douglass house was organized by a legal and constitutional majority, 
as evidenced by the certificates of election. 

There has been some contention that there were irregularities in the 
organization of the Douglass house. Now, what was the irregularity, 
if any? The statute of this State provides that, when the house of 
representatives convenes, the secretary of state shall lay before it a 
roll. Of what? A roll of the certified members of the house accord¬ 
ing to the returns in his office. Upon the day that the house of rep¬ 
resentatives met, Secretary of State Osborne went into the hall, about 
an hour and twenty minutes after the members had assembled, with a 
roll. The statute says he might have brought that in and left it. 
There seems to have been a contention whether he should preside, and 
the secretary of state, probably desiring no trouble with these con¬ 
flicting interests, stepped out. All that Secretary Osborne had was a 
certified list of members from his office. When he stepped out a mem¬ 
ber presented another. Somebody has said that that was dated the 
day before. It was a duplicate of the other roll. Secretary Osborne 
read his roll in this court, and it was compared, in the presence' of 
the court, with the roll certified to the day before. There was no 
difference between these rolls. The provision requiring the secretary 
of state to lay the list before the members is only directory. It does 
not prevent a legislative body from organizing. Of course, there might 
have been a little more formality about this matter. There might have 
been a little more order. There might have been less excitement. But, 
when Secretary Osborne withdrew, another roll was produced, a roll 
which everybody admits was a duplicate of his roll. 

The house organized upon that roll. We have said that Speaker 
Douglass and the other officers received more than a majority of the 
duly certified members of the house. The speaker of the house known 
as the “Dunsmore house” received no votes from the 64 members. 
There does not seem to be any reasonable contention about that. How 
many Mr. Dunsmore did receive it is impossible to tell, because his was 
a viva voce vote. The two houses organized about the same hour, 
nearly simultaneously, but the elections of the temporary and perma¬ 
nent speakers of the Douglass house were prior in time to the election 
of the officers of the Dunsmore house. The complete organization of 
the first was prior to that of the latter. After the Dunsmore house 
had elected a temporary speaker by a viva voce vote, Secretary Osborne 
returned to the hall of the house of representatives, and passed to such 
person the certified roll from his office of members of the house hold¬ 
ing certificates of election; but, at the instance of someone in the 
Dunsmore house, all the names on this roll were not called. Ten mem¬ 
bers were omitted—not counted. After there was a temporary organ¬ 
ization of the Douglass house, Joseph Bosenthal, of Haskell County, 
by general consent, was voted in as a member in the place of A. W. 
Stubbs, but he did not appear and answer as a member until after its 
permanent organization. 


18 


On January 12tli Joseph. Rosenthal, Stephen Meagher, and T. G-. 
Chambers (all Democrats) appeared in the Douglass house, tiled their 
oaths of office, and recognized the Douglass house as the legal house 
of representatives of the State. At this time both Meagher and Cham¬ 
bers held certificates of election. The returns in the office of the secre¬ 
tary of state showed that they were elected. Therefore, since January 
12th, the Douglass house has been composed of 66 members with cer¬ 
tificates of election, and also Joseph Rosenthal, who was admitted alter 
its temporary organization, making 67 members—more than a majority 
of the house, and more than a “quorum,” as defined by the constitution 
of the State. All concede that Rosenthal was duly elected. Under 
these circumstances, why was not the Douglass house a legally organ¬ 
ized house of representatives on the 10th and 11th days of January, 
1893"? In this connection it is significant that the governor did not 
recognize the Dunsmore house until January 12th, the third day of the 
session, and the senate did not formally recognize the Dunsmore house 
until January 14th, the fifth day of the session. If the Douglass house 
was organized on the 10th of January, and was in session on the 11th 
day of January, before either house had been recognized, why was not 
that house at that time the properly organized house ? The constitution 
says that the legislature shall consist of a house of representatives 
and a senate. On the 10th the governor had not recognized the Duns¬ 
more house; on the 11th the governor had not recognized the Duns¬ 
more house neither had the senate recognized either house; neither 
had the governor recognized either house. 

Kow, it is conceded that a house of representatives has other duties 
than mere legislative ones. Before it sends its communication to the 
governor, before it sends its communication to the senate, if it legally 
meets and organizes, is it not a house"? Has it not the right to protect 
itself? Has it not the right to issue subpoenas ? Has it not the right to 
examine those things which pertain solely and exclusively to the house 
itself? Supposing in this case there was no recongnition of the Duns¬ 
more house by the governor or the senate, and the Douglass house 
had issued its warrant upon proper resolutions; could it be said the 
Douglass house was not the constitutional house because it had not 
received recognition from the governor, or because it had not yet re¬ 
ceived recognition from the senate? Up to this time, everybody admits 
that there might be some little delay about such things. It often occurs 
in legislative experience that one body is organized some days before 
the other. There may be conflicting interests about organization, some¬ 
times in the senate, but more often, of course, in the lower house. 
Now, the i>oint we desire to make is this, and it seems to us conclusive 
and unanswerable: That if the Douglass house had a constitutional 
majority of the certified members upon the 10 th and 11th days of January, 
then during those two days it was the house, it was the legal house, 
it was the constitutional house, and had the right to do all those things 
necessary, outside of legislative matters, for its protection, for prevent¬ 
ing disturbance, for purging itself of illegal members. It had the right, 
then, to punish parties for contempt if they disobeyed its orders. 

Let us take an illustration: One hundred and twenty-five members 
of the legislature meet together, and there is no conflict. They or¬ 
ganize the house, and the senate is delayed in its organization, and 
the governor delays in answering its communications. Has not that 
house during the time of this delay all the rights of the legal and con¬ 
stitutional house of representatives ? Has it not the right, the moment 
it is legally organized, to require order within its body ? Has it not the 


19 




right, the very minute it is organized, to say to any person within its 
hall who attempts to insult its speaker or disturb a member, “ We will 
lay hands on you, because inhering in this body is the power of its own 
protection?” It was decided in State v. Hillyer, 2 Kan., 17, that— 
‘‘There is no constitutional inhibition of the session of one branch of 
the legislature when the other is not in session; and, semble, the sep¬ 
arate action of one body may be valid in the absence or nonorgaiyza- 
tion of the other.” It was said by Kingman, J., in that case: “If it be 
admitted, as claimed, that when acting in their legislative capacity, the 
proceedings of one house, when the other is not in session, have no 
validity, it can only be upon the ground that their legislative power is 
a unit, though distributed, and the parts can only act in unison, and 
neither the reason nor principle would apply to this case. But the 
principle contended for can not be admitted. If, at the commencement 
of the regular session of the legislature, the senate, for any cause, 
should fail for weeks to organize, there can be no doubt that it would 
be perfectly competent for the house to perfect its organization, ap¬ 
point its committees, and initiate legislation.” 

Then, if the Douglass house was legally organized and had a consti¬ 
tutional majority, it had tlie right to keep a journal before the gover¬ 
nor recognized it; it had the right to keep a journal before the senate 
recognized it. The journal of a legislative body commences at its very 
organization. The journal of a legislative house does not commence 
with the recognition from the governor; it does not commence with the 
recognition from the senate. If the Douglass house was legally and 
coil stitu tion ally organized, and was legally and constitutionally in ses¬ 
sion, is not the journal of the Douglass house, made on the 10th and 
11th days of January, binding and conclusive upon this court? This 
court has said that a journal properly made by the legislature is such 
evidence. Division of Howard Co., 15 Kan., 191. We are now refer¬ 
ring to the journal of the Douglass house made on the 10th and 11th 
days of January, before any recognition of either body—before the 
recognition from the senate or governor, of any house. Either we must 
say that the house of representatives depends for its existence upon 
recognition from the governor, or depends for its existence upon recog¬ 
nition from the senate, or depends for its existence upon the recognition 
from botli of these, or else we must say that the journal kept by the 
body that is organized is the conclusive journal to this court up to the 
time of the recognition of the other house. Then it seems to us that 
thus far in the case there ought to be no disagreement. 

Kow, the Douglass house having been legally organized, and having 
made a journal for a day or two before any recognition of either house, 
it seems that this journal, for those days, must be received as evidence 
for all it recites. As the Douglass house has continued in existence ever 
since it was legally and constitutionally organized, its journal must import 
absolute verity, not only for the two days before recognition of the Duns- 
more house, but during all of the time of its existence, unless it has in 
some way been ousted, destroyed, or dissolved. Clearly, if its legislative 
journal is good for January 10 and 11, it is good for all time, if the 
Douglass house was legally organized, and continued during the days 
of its journal to be a legal and constitutional house. At this time, with¬ 
out going extensively into the transactions of the two bodies, it is suf¬ 
ficient to say that the Douglass house has always met in the hall of rep¬ 
resentatives in the capitol, where it has been usual and customary, since 
the erection of that hall, for the house of representatives to meet and 
transact business. 


20 


It is true that another body, called the “Dunsmore house,” with 58 
members having certificates, met in a portion of the same hall; and 
hence there were two alleged houses in the same hall, doing or attempt¬ 
ing to do business. Tlie two alleged houses are the real cause of the 
contention now before us. If there were not, there would not be any 
trouble in this case, and there probably would not be this case for the 
court to hear and decide. It is also clear that, so far as it could do busi¬ 
ness, the Douglass house has carried on business. 

At this point it is urged with great ability and zeal that this court has no 
jurisdiction topass upon the question of the legality of either of these two 
houses, as it appears that there were two alleged houses. Its right to 
do so is denied by the petitioner and by the able counsel who represent 
the governor. x4.s was said by Chief Justice Marshall in Cohens v. Vir¬ 
ginia, 0 Wheat, 204, 404: “It is most true that this court will not take 
jurisdiction if it should not; but it is equally true that it must take 
jurisdiction if it should.” The judiciary can not, as the legislature 
may, avoid a measure because it approaches the confines of the con¬ 
stitution. We can not pass it by because it is doubtful, because it is 
unpleasant. With whatever doubts or with whatever difficulties a 
case may be attended, we must decide it as best we can, if it be brought 
before us. We have no more right to decline to exercise the jurisdic¬ 
tion thus given than to usurp that which is not given. 

Let us see what the authorities are upon this point. We read again 
from the able work of Judge McCrary. He says: “Thecases in which 
[ the official acts or votes of members of a legislative body who are such 
<de facto only, and not de jure, have been held valid, are all cases in 
which there has been no question as to the legality of the body in 
which they sat. They are cases in which the body admitting such 
j>ersons was, in doing so, acting within its admitted jurisdiction, and 
in such cases the courts will not inquire into the title of such members 
to their seats. The courts in such cases will go no further than to in¬ 
quire as to the legal status and the authority of the body as a whole; 
but where there are two bodies, each claiming to be the legislature, 
then the court, whose duty it is to respect and execute the acts of such 
legislature, must of necessity decide which is the legislature.” Section 
517. Then, again, under the constitution of Maine, the legislature 
could propound questions to the supreme court of that State, and in a 
certain case they did propound questions; and this is what the supreme 
court of Maine said: 

“ When different bodies of men, each claiming to be and to exercise 
the functions of the legislative department of the State, appear, each 
asserting their title to be regarded as the lawgivers for the people, it is 
the obvious duty of the judicial department, which must inevitably, at 
no distant day, take up the question, and pass upon the validity of the 
laws that may be enacted by the respective claimants to legislative au¬ 
thority, to inquire and ascertain for themselves, with or without ques¬ 
tions presented by the claimants, which of them lawfully represent the 
people, from whom they derive their power. There can be but one law¬ 
ful legislature, and the court must know for itself whose enactments it 
will recognize as laws of binding force when brought judicially before 
it. In a thousand ways it becomes essential that the court should 
forthwith ascertain and take judicial cognizance of the question, which 
is the true legislature?” 70 Me., 009. 

Now, in 71 Me., in a case concerning an office, not upon questions 
submitted, but upon a case concerning an office which was brought 
before the court in the regular way, the court repeats the identical 


21 


language used in the advice given upon the former occasion. Prince 
v. Skillin, Id., 361. If it is the obvious duty of the judicial department 
to pass upon the claims of two legislative bodies or assemblies, then it 
is also the duty of the judicial department to pass upon the legality of 
two different houses, both claiming to be the house of representatives. 
In 1859, George P. Burnham was imprisoned and restrained of his 
liberty by John Morrissey, at Boston, who justified such restraint 
upon the ground that he was the sergeant-at-arms of the Common¬ 
wealth of Massachusetts, and that he had arrested and detained Burn¬ 
ham by virtue of a warrant from the speaker of the house of repre¬ 
sentatives, to answer for a contempt in refusing to comply with an 
order of a special committee of the house. Proceedings in habeas 
corpus were commenced by Burnham before the supreme court of 
Massachusetts for his discharge, and, after a hearing of the case, that 
court held tha t Burnham was lawfully in the custody of the sergeant - 
at-arms, by virtue of the warrant of the house of representatives. 
Hoar J., speaking for the court, said, among other things: 

“The house of representatives is not the final judge of itsownpowers 
and privileges in cases in which the rights and liberties of the subject 
are concerned; but the legality of its action may be examined and de¬ 
termined by this court. That house is not the legislature, but only a 
part of it, and is therefore subject in its action to the laws, in common 
with all other bodies, officers, and tribunals within the Commonwealth. 
Especially is it competent and proper for this court to consider whether 
its proceedings are in conformity with the constitution and laws, be¬ 
cause, living under a written constitution, no branch or department of 
the government is supreme; and it is the province and duty of the judi¬ 
cial department to determine, in cases regularly brought before them, 
whether the powers of any branch of the Government, and even those 
of the legislature in the enactment of laws, have been exercised in con¬ 
formity with the constitution, and, if they have not been, to treat their 
acts as null and void.” Burnham v. Morrissey, 14 Gray, 226; State v. 
Kenney (Mont.), 23 Pac. Ilep., 733; State v. Meadows, 1 Kan., 91; State 
v. Barker, 4 Kan., 436; Graham v. Horton, 6 Ivan., 343. 

It has been said that there are some views the other way, and cases 
from Pennsylvania and Georgia are cited. In the Pennsylvania case 
the exact question as to the division of the legislature was not before 
the court. If the court intended to say in that case an injunction 
would not be granted against the supreme legislature, this court would 
readily concur with it. If it intended to go further than that, this 
court then calls attention to the fact that upon u political questions,” 
as they are denominated in Pennsylvania and Georgia and some other 
States, this court has heretofore differed from the courts of those States. 

In the case which involved the late Gov. Martin (17 Pac. Rep., 162), 
the question was raised whether he could be compelled by writ of this 
court to organize a county in this State. Gov. Martin had been ad¬ 
vised that, under the decisions of Georgia and Pennsylvania and other 
States, this court had no authority whatever by writ of mandamus or 
other proceedings to give him advice or direct him in a ministerial 
matter. He came before this court saying the court had no authority 
to inquire into any matter against him as governor. 

This court examined the matter patiently and carefully. There were 
no politics in that case. The governor believed his duty was one way, 
and this court, after examining the matter, said that the rule laid down 
in Pennsylvania and Georgia and in other States was not the best rule, 
and was not the one which should be recognized. We referred directly 


to P eon sylvan i a and Georgia decisions upon tliis question. Tlie latter 
were to the effect that the court can not compel the governor to per¬ 
form a ministerial act; that it can not touch anywhere his domain of 
duties of any kind or character. It is true dissenting opinions were filed 
in some of those cases, but it is the majority of the court that always 
rules. A majority of the court in Pennsylvania and Georgia held that 
neither the supreme court nor any other court had any right to inquire 
about the duty of the governor concerning any matter, whether min¬ 
isterial or discretionary. In the case of Martin v. Ingham, found in 
38 Kan., 641, 17 Pac. Pep., 162, the decisions are cited. They are all 
gone over, and in a most learned and able opinion by Mr. Justice \al- 
entine this whole question is examined, and, so far as that particular 
question was concerned, was then settled. 

This court differed from the supreme courts of the States of Penn¬ 
sylvania and Georgia; and although the governor of this State said, 
u You have no right to give me advice,” and although it was said the 
governor was beyond the power of this court, and we should hesitate 
before we attempted to enforce his duties, this court unanimously went 
upon the discharge of its work in the best way it could, and, in response 
to the suggestion that the governor would not obey, said: “It is said 
that, if the governor opposes the order or judgment of the court, it can 
not be enforced for he has entire control of the militia. But are the 
courts to anticipate that the governor will not perform his duties'? 
Should not the courts rather presume that, when a controversy is de¬ 
termined by the courts—the only tribunals authorized by the consti¬ 
tution or the statutes to construe the laws and determine controversies 
by way of judicial determination—that the governor, as the chief ex¬ 
ecutive officer of the State, would see that such determination should 
be carried into full effect? Such would be his duty, and no one should 
suppose that he would fail to perform his duty when his duty is made 
manifest by judicial determination of the courts. No department should 
ever cease to perform its functions for fear some other department may 
render its acts nugatory, or for fear that its acts may in some manner 
affect the conduct or the status of some other department.” 

In this case we are not called upon to make any order concerning the 
governor. In this case we are not called upon to make any order con¬ 
cerning the State senate. We are simply called upon to exercise our 
judicial determination as to which is the legally organized and consti¬ 
tutional house of representatives. There can be no conflict; there 
should be no conflict. The court is answerable to the people of this 
State. The governor is answerable to the people of this State. The 
house is answerable to the people of this State. 

But, again, in 1879 the house of representatives of this State associ¬ 
ated with itself some persons above the number of 125. An act was 
passed by the legislature. It was passed by what was called the 
“ house.” It was passed by the senate, and approved by the governor. 
It was published in the State paper. And yet, when that act of the 
legislature came before this court for examination, it said “ that the 
house of representatives had no lawful authority to pass the act,” and 
it wiped it out of existence. There was no conflict between the gov¬ 
ernor and the senate or the house in doing this thing. Supposing the 
legislature of 1879 had passed every act by votes of that character, 
and they had been proclaimed and published, this court would have de¬ 
clared everv such act void. 

It is said that we can not find a line in the constitution giving this 
court authority to pass upon this question of organization. It is the 


23 


acknowledged power of this court to finally pass upon every act of the 
legislature. It is the acknowledged power of this court to declare acts 
of the legislature void. In the case in 26 Kan., 724 (the Francis Case), 
there was nothing upon the face of the act to show but what it was a 
legal enactment. It was properly signed. It was properly enrolled. 
It was properly published. But this court went into the house of rep¬ 
resentatives, and examined its journal, and ascertained that the house 
was not a constitutional body, and it stamped the so-called “act” out 
of existence. It had the power to do it, and that decision has been 
recognized ever since. Mr. Justice Valentine, speaking for the court 
in that case, said: “ Kow, generally, under affirmative and mandatory 
constitutional provisions, the legislature may do more than is required; 
but it can not do less, if it does its duty. Under negative and prohib¬ 
itory constitutional provisions, however, the legislature may often re¬ 
frain from doing things which are not prohibited; but it can never do 
what is prohibited. Under this negative and prohibitory clause of the 
section, the legislature may fix the number of representatives at less 
than one hundred and twenty-five, but it can never fix it at more; and 
there is no power in the State which can fix it at more. 

u Therefore, whenever the house of representatives consists of more 
than one hundred and twenty-five members, some of such members 
must be there illegally. Such was the case in 1879. The house of 
representatives at that time consisted of one hundred and twenty-nine 
members. Four of these members, to wit, the four from Rooks, Rush, 
Harper, and Kingman counties, who were not provided for by law, and 
being the last members admitted were not entitled to their seats. And 
the act in controversy was passed only by the assistance of their votes. 
Except for their votes, or at least three of their votes, the act would 
not have received a constitutional majority of the votes of the members 
of the house; and, not counting their votes, the act did not receive a 
constitutional majority. Kow, we do not think that their votes should 
be counted, and therefore we think the act in controversy must be held 
as not having passed the house of representatives, and as void.” It 
is said that the court can not inquire by quo warranto into the right of 
membership of these respective bodies. This court said that in the 
Tomlinson case, in 20 Kan., 692; but, when this court has the ultimate 
right and duty to pass upon acts of the legislature, it has also the 
right to pass upon the organization of the legislature, of either or both 
houses, although it has no right whatever, after the legislature is or¬ 
ganized, to deal with any question concerning “the elections, returns, 
and qualifications of its own members.” 

Whether Gunn is rightfully restrained of his liberty by a legal house 
of representatives is not a political, but a judicial question, and this 
court therefore must have authority to inquire and determine whether 
the house has been properly organized, and is such a house as is au¬ 
thorized by the constitution of the State to establish its own rules, to 
keep and publish a journal, etc. Burnham v. Morrissey, 14 Gray, 226; 
State v. Cunningham (Wis.), 53 K. W. Rep., 35; Id., 51 N. W. Rep., 
735; Giddingsr. Blacker (Mich.), 52 N. W. Rep., 944; State v. Kenney 
(Mont.), 23 Fac. Rep., 733. In Rice v. State, 7 Ind., 334, it is said: “The 
constitution of the State, relative to acts of the legislature, is the para¬ 
mount or supreme law. That, when the two conflict, the acts of the 
legislature must yield as utterly void. That it is the duty of the 
courts, in every case arising before them for decision, to decide and 
declare the law governing the case. The duty of the courts to give 
construction to laws, and to declare void or disregard, because not law, 


24 


those legislative acts in conflict with the constitution, grows, of neces¬ 
sity, out of the other duty of declaring what the law is.” Campbell v. 
Dwiggins, 83 Ind., 473; Cooley, Const. Lim., 45. 

In Prouty v. Stover, 11 Kan., 235, Mr. Justice Brewer, speaking for 
the court, said: u Three questions are presented, two of which, at least, 
must be decided in favor of the plaintiff before he will be entitled to the 
relief sought: First. Could a majority of members present in the joint 
session, and voting, elect, or did it require a majority of all the mem¬ 
bers elected to the two houses? Second. Did the house of representa¬ 
tives consist of more than ninetv members? Third. Can this court look 

%j 

back of the final declaration of the result by the joint convention to see 
whether, upon either of the votes, any one other than the one declared 
elected was in fact elected ? These questions, as can readily be seen, are, 
so far as this court is concerned, of a delicate nature, for they concern 
the regularity of the proceedings of the legislative branch of the Gov¬ 
ernment: and they are also questions of great moment, for they involve 
the rightfulness of’the organization of at least one body of the legisla¬ 
ture.” In that case this court decided: u Where the legislature is made 
an electoral body, and a proceeding is had to contest the validity of an 
election by such body, the courts are not precluded by the action of 
the house in admitting members from inquiring into the legality of cer¬ 
tain representative districts, and the rights of the members from those 
districts to vote at such election.” 

But it is claimed that the Douglass house has been destroyed, ousted, 
or dissolved by the recognition of the Dunsmore house from the gov¬ 
ernor and the senate. The governor did not recognize the Dunsmore 
house until January 12th, the third day of the session; and the senate 
did not formally recognize the Dunsmore house until the 14th day of 
January, the fifth day of the session. It is true that it appears the 
secretary of the senate went to the Dunsmore house and presented 
communications before that date, but he explains that it was not by 
order of the senate, but because some of the senators asked him to do 
so. The conclusion we have reached is that, taking the journals before 
us, the house that the governor recognized consisted of 58 members— 
not a constitutional quorum, not a constitutional majority; the house 
that the senate recognized consisted of 58 members—not a constitu¬ 
tional quorum, not a constitutional majority. It has been said that as 
the governor must act in this matter, that as the senate must act in 
this matter, should not their actions be final and conclusive? That 
seems to be one theory. 

If that is the correct view the court’s connection with the case would 
be very brief All we would have to do would be to ask: u What did 
the governor do? What did the senate do?” W T e admit that for cer¬ 
tain purposes recognition from the governor should be considered. We 
admit that for certain purposes recognition from the senate should be 
considered. All departments of the government should pay all proper re¬ 
spect to the acts of all other departments. The governor, overwhelmed 
with business, perplexed with the duties surrounding him, not having time 
to investigate, recognizes a body which is not aconstitutional body. The 
senate passed a resolution to investigate, but, examining the journal, I 
can not find any report upon that resolution. It recognizes a body not 
a constitutional body. Is such a recognition final? Is it conclusive? 
Does it bind this court? Is the end of the duty of this court to simply 
inquire what are the records in the office of the governor and the State 
senate? We admit that, if after such recognition, the Douglass house 
had voluntarily departed from their room, and gone their several ways 


to their homes, and the 58 members had increased its membership in 
anyway it pleased, by lawyers, by doctors, by anybody, and they had 
gone on and continued business without interference and without chal¬ 
lenge, such recognition would have some weight. But that is not the 
case presented here. 

On January 13th Senator Baker presented to the State senate, of 
which he is a member, the following protest of himself and 13 other 
members, and asked to have it spread upon the journal: 

u Whereas, at the general election held in the State of Kansas on the 
8th day of November, 1892, there were chosen by the electors partici¬ 
pating therein, 125 certain members of the house of representatives 
of the State, each of whom received a plurality of the votes cast in their 
respective districts; that certificates thereof from the county clerks of 
the districts, certifying that upon a canvass duly and legally made in 
their respective districts, said certain 125 representatives received cer¬ 
tain votes, were filed with the secretary of State, as provided by law; 
that the State board of canvassers of Kansas, as provided by law, duly 
met on November 28th, 1892, canvassed the returns, and determined 
that said 125 certain persons had been duly elected to the office of rep¬ 
resentative in their respective districts, and a record was made of such 
determination by said board, and is now in the custody of the secretary 
of State of Kansas; that after making said full and complete canvass 
of said returns, and having fully and completely discharged its duties 
according to law, said State board of canvassers, on December 1st, 1892, 
adjourned sine die; that, after said adjournment, the secretary of state, 
who was ex officio a member of said board, issued certificates of elec¬ 
tion to those ascertained by said canvass to have been elected members 
of said house of representatives; and 

“Whereas, on Wednesday, January 4th, 1893, the supreme court of 
Kansas, the same being the highest judicial tribunal in the State, in 
an action then and therein pending, wherein one Joseph Rosenthal was 
relator and the State board of canvassers was respondent, after care¬ 
fully considering said case, decided that after the State board of can¬ 
vassers had once convened and duly canvassed the returns of all the 
votes before them and on file in the office of the secretary of state afore¬ 
said, and had fully and completely discharged its duties, and had ad¬ 
journed sine die, that the State board of canvassers could not on its own 
order reconvene for the purpose of making any different or further can¬ 
vass of said returns, and that the court had no power or authority, under 
the statutes, to order the State board of canvassers to meet and further 
canvass the returns, so that other and different certificates of election 
might be issued, or for any other purpose; and 

“ Whereas on Thursday, January 10th, 1893, at the time appointed 
by law for the assembling and organization of the State senate and the 
house of representatives of the State of Kansas, that said certain 125 
persons, excepting Mr*A. W. Stubbs, the Republican opponent of said 
Rosenthal, who declined to meet and act, met in representative hall, in 
the State house, at Topeka, Ivans.; that upon a call of the roll prepared 
by the secretary of state of the State of Kansas, containing a list of all 
those holding certificates of election, according to the determination of 
the State board of canvassers, it was ascertained that said 125 persons, 
excepting said Stubbs, were present at said time and place, and there¬ 
upon each of said persons, to the number of 04, whose names are 
hereinafter set forth, took the oath of office required by the constitution 
and laws of the State of Kansas, and duly qualified as representatives 
of said State; that thereafter said 04 proceeded to organize by the 


26 


election of a temporary speaker, and, after a temporary organization 
liad been effected, not only said 64, but at least three others, recognized 
the organization- and said 64 participated in the election of a speaker 
for said house of representatives; and that 64, being a legal majority 
of all those holding certificates as aforesaid, voted for and elected the 
Hon. Geo. L. Douglass as speaker of said house of representatives, 
the names, numbers of district, and politics of those participating in 
the election of Speaker Douglass being as follows, to wit: [Here the 
districts and names, etc., were copied.] And 

“ Whereas, notwithstanding the above and foregoing facts, other 
persons of the said 124, and independent of said 64, together with some 
persons not holding certificates of election of said State board of Kan¬ 
sas, participated in selecting one J. M. Dunsmore as a pretended 
speaker, in violation of both statute and parliamentary law: Now, there¬ 
fore, we, the undersigned, being members of this senate, in the name 
of law, order, decency, and constitutional government, the good name 
and credit of the State of Kansas, most emphatically protest and object 
to recognizing the alleged house of representatives presided over by 
.said Dunsmore as a lawful body. 

“Lucien Baker. 

“ Milton Brown. 

“D. Me. Taggart. 

“ S. T. Danner. 

“ W. A. Morgan. 

“James D. Williamson. 

“ H. F. Bobbins. 

“ E. T. Metcalf. 

“ S. O. Teacher. 

“ Jno. C. Carpenter. 

“ K. E. Willcockson. 

“W. E. Sterne. 

“ J. W. Parker. 

“ Chas. F. Scott.” 

Senator Taylor presented the following protest, and asked that it be 
spread upon the journal of the senate: 

“To the president of the senate: I hereby formally protest against 
the recognition of the alleged secretary of the house, now claiming 
recognition on this floor, because it virtually decides the most impor- 
taut question that ever came before this senate without investigation 
and without debate. 

“Edwin Taylor.” 

Senator O’Bryan presented the following protest, and asked that it 
be spread upon the journal of the senate: 

“I, Ed. O’Bryan, senator from the 29th senatorial district, do hereby 
enter my protest against the action of the president of this body in 
recognizing Ben 0. Bich as chief clerk of a house of representatives of 
the State of Kansas, as I believe the said house of representatives to 
be illegally organized, and is not the legal body, and should not be 
recognized. 

“Ed. O’Bryan.” 

Subsequently Senator Brown filed a further protest in the state 
senate, which concluded as follows: “To recognize the Dunsmore house 
will be to defeat needed legislation, as that house is illegal and uncon¬ 
stitutional.” 


27 


On January 14tli Senator Parker filed a protest in the State senate 
against recognizing Mr. Eieli as chief clerk and Hon. J. M. Dunsmore 
as speaker. On the same day Senator Baker, with 13 of his associates, 
also tiled a further protest in the State senate, which, among other 
things, stated: 

“It will not, nor can it, be denied that on the 10th day of this month, 
at 12 o’clock noon, being the usual hour for organization of the legis¬ 
lature of Kansas, there assembled in the hall of the house of repre¬ 
sentatives 01 persons, constituting a constitutional majority of such 
house, each holding from the State board of canvassers a duly-authen¬ 
ticated certificate of election issued by such board; nor can it be de¬ 
nied that then and there, in a lawful and regular manner, these 04 
members organized the house of representatives, by the election of 
George L. Douglass as speaker, and the choice of the other usual and 
necessary officers. It is also a fact that, prior to that time, the supreme 
court of the State of Kansas had, in a proper case before it, decided 
that no person not holding a certificate of election was entitled to par¬ 
ticipate in the organization of the house of representatives. At the 
same time there assembled in the hall 58 persons, each holding a cer¬ 
tificate of election, who withdrew and separated themselves from the 
majority of the house above mentioned, and refused to and did not 
participate in the proceedings of the organization. Thereupon these 
58 persons, being a minority of the house of representatives, unlaw¬ 
fully introduced among their own number 10 persons who held no cer¬ 
tificates of election, and who were defeated at the polls in opposition 
to 10 of those constituting the majority. 

“The minority of the legislature then assumed to produce and have 
qualified these 10 persons as members, and, in connection with them, 
assumed and pretended to organize the house of representatives. The 
names of these persons unlawfully introduced as members, and the 
majorities by which they were respectively defeated, is hereto appended: 
J. W. Howard, beaten by 1,050 votes; D. M. Howard (Shawnee), 
beaten by 441 votes; Ed. Shellabarger, beaten by 193 votes; Y. Glea¬ 
son, beaten by 26 votes; W. H. White, beaten by 8 votes; H. Hell- 
strom, beaten by 8 votes; J. K. Goodwin, beaten by 5 votes; E. B. 
Brown, beaten by 42 votes; John Morrison, beaten by 15 votes; O. M. 
Rice, against whom a tie was decided in accordance with the law. 
That thereupon these 58 persons, acting together with the 10 persons 
who then and there respectively usurped the offices of representatives, 
without anj" form of trial or right thereto, or without submitting their 
claims of right to any tribunal, then and there unlawfully pretended 
/ to organize themselves as the house of representatives of the State of 
Kansas, and from that time up to the present the revolutionary body 
so organized has riotously and tumultuously seized and held the hall 
of the house of representatives, and has obstructed the lawfully 
organized house of representatives m the transaction of any business.” 

Senator Taylor followed with a protest of his own, which stated, 
among other things, that “ previous to such organization it appears 
clear to me that no person or persons, however connected, have the 
right or the power to say that certain persons holding certificates are 
not elected, and certain other persons not holding certificates are 
elected. Ko matter how great a wrong may have been done to any in¬ 
dividual by means of the mistaken or fraudulent issuance of a certifi¬ 
cate of election, a greater wrong would inure to society itself if thecon- 
testee or his friends, acting not as a legally constituted tribunal, were 
themselves, in advance of organization, to pass upon the issues joined, 


28 


and set sucli certificates aside without due process of law. To what¬ 
ever extent such irregular proceedings are countenanced or encouraged, 
to that extent the orderly course of society is jeopardized. The forms 
of law are a part of the law, and it appears clear to me that, if the forms 
of law had been adhered to in the organization of this house of repre¬ 
sentatives, there would be no question as to who constituted its mem¬ 
bership. It may be that strict justice would have seated these contest¬ 
ants, but the injustice of irregular ways of getting at justice would be 
intolerable.” 

Thereupon the following protest was presented to the State senate: 

“I, W. P. Dillard, senator from the Eighth district, do hereby pro¬ 
test against the action of the senate this 14th day of January, 1893, in 
passing the resolution called 4 House Concurrent Resolution No. 1,’and 
for the reason that I am satisfied that said resolution was not passed 
and transmitted to the senate by a legally constituted or constitution¬ 
ally organized house of representa tives.” 

“W. P. Dillard, Senator” 

All of these protests appear in the journal of the State senate pre¬ 
sented in evidence on the part of the petitioner. Senators Taylor, 
O’Bryan, and Dillard, who filed the foregoing protests, are not Repub- 
cans, and were not elected as Republicans.' They are not members of 
the minority party of the senate, or of the majority party of the house 
presided over by Hon. George L. Douglass. The journal of the Doug¬ 
lass house also shows that on January 10th, before any recognition of 
the Dunsmore house, a committee appointed to prepare a written ad¬ 
dress from the members of the Douglass house to the governor called 
upon and presented the same to him. This was signed by 64 members 
of the house of represeuatives having certificates of election, setting 
forth the organization and officers of the Douglass house, and asking 
recognition. The members of that committee were Hon. W. M. 
Glenn, Hon. C. E. Lobdell, and Hon. J. K. Cubbison. 

Subsequently, and before any recognition of any house, the Douglass 
house appointed a special committee to prepare an address to the gov¬ 
ernor, which was presented in writing to him. That committee con¬ 
sisted of Hon. E. W. Hoch, Hon. J. B. Remington, Hon. J. K. Oubbi- 
son, Hon. James A. Troutman and Hon. C. E. Lobdell. The address 
was signed by 64 members of the house of representatives having cer¬ 
tificates of election, and concluded as follows: “We, therefore, in 
behalf of the people of the State of Kansas, and on behalf of the good 
name and credit of our State, and in the name of law, order, decency, 
and good government, call upon you, as the governor of the state 
of Kansas, to recognize the Hon. George L. Douglass as the 
legal and qualified speaker of the house of representatives of the State 
of Kansas, and ask that the protection of the law be thrown around 
him in exercising the duties of his office. We present to your excel¬ 
lency this memorial, because we believe it to be our duty that the gov¬ 
ernor and the good people of the State should be informed of the true 
condition of affairs now existing in the hall of the house of representa¬ 
tives, and be informed of the illegal and revolutionary actions of a por¬ 
tion of our fellow citizens.” 

The State senate has 40 members. At the time of these protests, one 
John M. Price, a Republican, was absent. The house of representa¬ 
tives has 125. Therefore it appears from the journals of the senate and 
house of representatives that 17 senators having certificates of elec¬ 
tion, and 64 members having certificates of election, making a total of 


29 


81 members, objected to recognizing the Dunsmore house as the house 
of representatives, and subsequently, on January 12, 1893, with the 64 
members of the Douglass house having certificates of election, two 
others, Hon. Stephen Meagher and Hon. T. G. Chambers, also having 
certificates of election, and Hon. Joseph Rosenthal, admitted by motion 
in the Douglass house, united, making in all, with the senate protest¬ 
ing members, 84 members, being more than a majority of the entire 
membership of the legislature, including all the members of the sen¬ 
ate and house, as opposed to the recognition of the Dunsmore house as 
the house of representatives. We refer to these matters in the journals 
as showing the vigorous opposition of the members of the legislature 
to the recognition of the Dunsmore house, and the official and public 
challenges to which that house was incessantly and continuously sub¬ 
jected. 

The constitution ordains, as before stated, that it takes a majority ot 
each house to constitute a quorum. If 58 members—a minority of the 
house—with lawful certificates, acting with 10 men who have not any 
credentials, but who claim that they were really elected, may, before 
or after an organization, go behind the written credentials or prima 
facie title of the members duly declared elected to make up a quorum 
or house, then a dozen members, or any number less than a quorum, 
can do the same thing, and it would be impossible to organize or con¬ 
duct a free legislative government according to constitutional or orderly 
methods. Any person can set up the claim that he has been elected to 
the house, regardless of the truth of the matter; and if a certificate of 
election does not clothe the person who receives it with the lawful and 
rightful authority to act as a member, subject only to the judgment of 
the house after there is an organization of the members having certifi¬ 
cates into an actual and acting house, the organization and control of 
the house must be in the hands of those who, by physical force, have 
the superior power to seat themselves as members, whether elected or 
not. The ballots, the votes, the returns, the certificates, in such a case, 
would count for naught. 

The governor can not recognize as a house a body which has no quorum, 
which is not a constitutional house. The governor can not create a house 
out of an unorganized or unconstitutional body, at its own will. He 
can not abolish or destroy by his order any legal or constitutional house 
of representatives. The senate can not create or abolish a house of rep¬ 
resentatives. It can notrecognize an unorganized or an unconstitutional 
body as a legal or constitutional house. Neither can the governor and 
the senate together create, at their own will, a legal or constitutional 
house. Neither can they both abolish or destroy alegal or constitutional 
house. The house of representatives is a body authorized by the con¬ 
stitution of the State, and for certain purposes is independent and sepa¬ 
rate from the senate or the governor. Each house keeps and publishes 
its own journal; each house establishes its own rules; and each house is 
the judge of the elections, returns, and qualifications of its own mem¬ 
bers. The legislative power of this State is vested in a house of repre¬ 
sentatives and senate, not in the governor and senate alone. 

But, again, it is claimed that the Dunsmore house has become a de 
facto house by the recognition from the senate, the governor, the execu¬ 
tive officers, and others. As has already been said, if the house known 
as the u Dunsmore house” had full and unlimited possession of the 
hall of representatives, and the rival party had ceased its existence, 
the question of a de facto legislature would have strong force in this 
case. There often comes a time in the conduct of all bodies and officers 


30 


V.: 


when, on account of public interests, irregularities, and even wrongs, 
are cured. There comes a time when usurpation is successful. There 
comes a time when revolution is accomplished, and must be recognized. 
But a de facto house, a de facto government, usurpation of power, and 
unlawful methods are not accepted, if a constitutional house, a consti¬ 
tutional government, rightful authority, and legal methods are exist¬ 
ing, transacting business, as against defective, irregular, unwarranted 
acts, and unconstitutional exercise of power. But here is a valid and 
constitutional house attempting to carry on business. Every day of 
its session, so far as its journals show, the Douglass house challenged 
the riglitfulness of the Dunsmore house. It challenged the action of the 
governor. It challenged the action of the State senate. And the very 
first act of the senate and the Dunsmore house was seized by a court of 
this State, and throttled out of existence. 

Although the temporary order of injunction was made by the district 
court of Shawnee County, until it is reversed or vacated by proper pro 
ceedings in this court it is as valid and binding between the parties as 
the order of the supreme court of the State. This court must take 
knowledge of all the usual and ordinary incidents which are transacted 
around it, and it is unnecessary to say that the challenge has been so 
successful that various bodies have divided upon this question, and 
there has been no acquiescence and no general agreement among the 
people that the Dunsmore house is the house of representatives. “An 
officer de facto must be in the actual possession of the office, and have 
the same under his control. If the officer de jure is in possession of 
the office—if the officer de jure is also the officer de facto—then no 
other person can be an officer de facto for that office. Two persons 
can not be officers de facto for the same office at the same time.” Mc- 
Calion v. Commissioners, 8 Kan., 438. This court subsequently re¬ 
affirmed this rule in the case of Braidy v. Tlierritt, 17 Kan., 468, using 
the following language: u We have already held that two persons can 
not be officers de facto for the same office at the same time.” McCahon 
v. Commissioners, supra . Practically it was again stated in the case 
of State v. Durkee, 12 Kan., 309. 

The supreme court of Nevada, in the case of State v. Blossom, re¬ 
ported in 10 Pac. Ilep., 430, states the rule in this way: u If an office is 
filled, and the duties pertaining thereto are performed by the officer de 
jure, another person, although claiming the office under color of title, 
cannot become an officer de facto.” Leonard, J., in delivering the 
opinion of the court in the above case, uses the following language: 
u The principal ground urged by relator in support of his petition is 
that Harris and others were the de facto board, and that their acts as 
such were good and binding in law as to the public and third parties. 
The general principle stated by counsel for relator, that, as to the pub¬ 
lic and third parties, the acts of de facto officers are binding, is well 
settled and admitted. * # * There were two boards each claiming 

that the other was unlawful, each urging and maintaining the validity 
of its own acts, each proceeding as though the other did not exist in 
the matter of employing teachers, etc. * * # It is undoubtedly 

true, as claimed by counsel for relator, that the new trustees would 
have become a de facto board if the old ones had not acted as such; 
but, since they did as above stated, were they not the de facto board? 
Two physical bodies cannot occupy the same place at the same time, 
and two persons cannot be officers de facto for the same office at the 
same time. If the office is filled, and the duties appertaining thereto 
are performed by an officer de jure, another person, although claiming 


31 


the office under color of title, cannot become an officer de facto.” Mc- 
Calion v. Commissioners, 8 Kan., 441; Boardman v. Halliday, 10 Paige, 
232; Morgan v. Quackenbush, 22 Barb., 80; Colm v. Beal, 61 Miss., 399. 

In Boardman v. Halliday, 10 Paige, 232, the court held: “Where there 
is but one office, there can not be one officer dejure and another officer de 
facto in possession of the office at the same time.” The Douglass house is 
the body or house dejure; is in possession of the office; is in possession 
of the hall—at least, it is holding its sessions and transacting its 
business in representative hall. Then the other body, the Dunsmore 
house—the minority the so called u de facto house”—has not the exclu¬ 
sive possession of the hall; has not the exclusive possession of the 
office; and has not ousted, destroyed, or dissolved the Douglass house. 

We are referred to two cases from Georgia—Gormly v. Taylor, 44 
Ga., 76, and Railroad Co. v. Little, 45 Ga., 370. In both of these cases 
the principal question for decision was as to the validity of acts of the 
general assembly of Georgia under a section of the constitution of that 
State, which provides that “no session of the general assembly, after 
the second under this constitution, shall continue longer than forty 
days, unless prolonged by a vote of two-thirds of each branch thereof.” 
Both decisions were rendered by a divided court, but in neither case 
were there two rival legislatures or houses in dispute. If we had a 
case like Railroad Co. v. Little before us, the question of a de facto law 
would be very strong. After going over all the matters connected 
with it, the court, among other things, says: “ In this case there was a 
hot dispute over the matter. Men honestly differed as to the truth of 
the case, and the decision was made. It has been acted upon for two 
years by the people, by the executive, and by this court, until it has 
become an accomplished fact.” 45 Ga., 370. Whenever an act of the 
legislature is brought into this court, which is not a violation of the 
constitution, which has been acted upon by the people of the State for 
two years, and which has been acted upon by this court as a completed 
and binding enactment, a de facto law may come into existence. 
When such a case comes, we will decide. But there is no such case 
presented by the journals. There is no such case presented by the 
argument. There is no such case for us to pass upon. 

The Dunsmore house never had but 58 constitutional members. It 
never had the legal power to create any more members. It therefore 
never had the legal power to enlarge its existence. So long as there is 
a legal and constitutional house of representatives carrying on business 
in the identical hall where it is usual and customary for its business to 
be transacted, it seems to us that this question of a de facto house of 
representatives has not arisen to that dignity or acquiescence worthy of. 
serious consideration. Is it possible that a body consisting of less than 
a quorum—less than a majority—can be a constitutional house of rep¬ 
resentatives under any circumstances, whether by recognition or other¬ 
wise ? It is necessary that a majority of members elected to each house, 
voting in the affirmative, shall be necessary to pass any bill or joint 
rule. No act not having received a constitutional majority of the votes 
of the members of the house can ever become a law. It is immaterial 
what the senate may do, what the Governor may do. A constitutional 
majority of the votes of the house of representatives is necessary for 
legislative action in any case. 

In the case of State v. Board of Corners of Ford Co., 12 Kan. 441, it was 
ruled that “ where the legislature has seemingly recognized the exist¬ 
ence of a county organization of a certain county by passing an act 
providing for the holding of terms of the district court therein, but 


32 


where such county, up to the time of* such seeming recognition, never 
had any organization, de facto or otherwise, such recognition does not 
have tiie effect to create an organization. ” In the recent case of 
Murphy v. Moies (R. I.), 25 Atl., Hep., 977, which cites the leading cases 
upon the recognition of de facto officers, the law is thus stated: 
“ Reputation and acquiescence are controlling elements in determining 
the validity of official acts as those of an officer de facto." The case 
of State v. Smith, 44 Ohio St., 348, 7 N.E Rep., 447, and 12 K. E. Rep., 
829, lias been cited to establish the doctrine that certain persons may 
be de facto members of the house to which they belong, although not 
de jure members. That case, and similar cases from Michigan and 
other States, which have been cited, have no application. There were 
not two houses or two legislatures in session in Ohio. In that case the 
senate was legally organized, and for a time, it is conceded, a quorum 
were present, and its journal properly made. Subsequently about 20 
members, being a majority, left the senate chamber, and it is asserted 
that 17 members, less than a quorum, proceeded to transact business; 
admitting other members, and continuing its journal as showing that 
a majority of the senate was present and acting. 

The supreme court held, under the circumstances, that the journal or 
record of the senate imported absolute verity, and could not be im¬ 
peached by parol testimony tending to show less than a quorum were 
present. Whether that decision would be good law in this State, in 
view of the decision in State v. Francis, 20 Kan., 724, we need not now 
inquire; but it is a different case than the one we are investigating, 
because the Dunsmore house never legally organized, never had a legal 
majority, never had a constitutional quorum, and therefore never had 
a legal journal to conclusively import anything. But even in the Ohio 
case the chief justice vigorously dissented, and, among other things, 
said: “By the averments of this reply there was no senate—simply a 
number of its members wholly without power to act. There was no 
senate journal, but a false and fraudulent pretense of one; and, for 
aught that appears in this case, this pretended journal might, if offered 
in evidence, or brought before us, be relied upon to establish, in part, 
the facts averred. * * * The attempt to sustain the act in question 

by the rule relating to officers de facto is a palpable misapplication of 
a familiar doctrine; * * * but in the case before us there was not 
the slightest color of authority to constitute the persons members of 
the senate who are relied upon to give vitality to the act. Their title 
to their seats has never risen higher than a deliberate plot to circum¬ 
vent a plain command of the constitution. 

“ But it must be remembered that the averment of the reply is that 
less than a quorum (17 members) were present when this act was passed. 
There is another principle which is fatal to the view here contended 
for and adopted by the majority. There is no form of direct attack 
upon the authority of these pretended senators to act recognized by 
the law. The present is the only available form of attack upon their 
proceedings. Quo warranto would not lie to call in question their au¬ 
thority to exercise the functions of senators. The present is to be 
treated as a direct attack, for the reason that no other form of attack 
can be made. The principle is well established that, where a direct 
attack upon a proceeding can not for any reason be made, it may be 
collaterally questioned. Yose v. Morton, 4 Cush., 31, and cases there 
cited.” The Georgia, Ohio, Michigan, and other similar cases are of 
the class referred to by McCrary on Elections. (2d Ed., § 517:) “The 
cases in which the official acts or votes of members of a legislative body 


33 


\ 


wlio are such de facto only, and not de jure, have been held valid, are 
all cases in which there was no question as to the legality of the body 
in which they sat.” 

From all that we have said, our conclusion is, and must imperatively 
be, that the house known as the u Douglass house” is the legal and con¬ 
stitutional house of representatives of the State of Kansas, and, being 
such house, it has the power to compel witnesses to appear and testify 
before it or one of its committees in election contests arising in that body. 
It has full power to punish for contempt any witness who refuses to ap 
pear when personally subpoenaed in an election contest or other proper 
proceedings pending. It has also the power to protect itself from dis¬ 
order, disturbance, or violence. It has never been destroyed, ousted, or 
dissolved since its organization. It is a body or house u having author¬ 
ity to commit.” Anderson v. Dunn, G Wheat., 204; Burman v. Morris¬ 
sey, 14 Gray, 226; In re Falvey,7 Wis., G30; People v. Keeler, 99 K. Y., 
463, 2 K. E. Rep., 615; Rap. Contempt, § 2. 

It has been suggested that we should hesitate to give an opinion in 
this case upon the legality of either of the contending bodies claiming 
to be the house of representatives, because unpleasant complications 
might arise therefrom; and it has been even suggested that the gov¬ 
ernor and the senate will not find their way clear, after what lias 
passed, to communicate and act with the legal house known as the 
u Douglass house,” and therefore, as a result, that appropriations may 
fail; that the governor’s office, and all the other departments of the 
government, including the judiciary, will have no funds with which to 
transact public business. More unfortunate still, it has been suggested 
that the educational, charitable, and penal institutions of the State 
will be closed and the inmates discharged for want of money with which 
to operate them. We trust that such will not be the result. We as¬ 
sume that the governor of the State is honest and patriotic. We assume 
that the members of both houses and the senate are honest, and 
actuated by worthy motives; and we trust that in the end there may 
be some way, as in Alabama, as in Maine, by which the legal bodies 
and the governor can act harmoniously and unitedly. 

The questions involved in this case are above partisanship. They 
concern the public; they concern the State; and the party and parti¬ 
sanship should be wholly disregarded by each and by all. Let the 
mistakes of the past be corrected and the unfortunate differences pass 
without further comment into oblivion. Let mutual concessions pre¬ 
vail, and then perhaps amicable relations between the belligerent and 
discordant elements may be restored. u He serves his party best who 
serves his country most.” The gravicy of the subject we fully under¬ 
stand. Certainly no constitutional or public question can be more 
solemn than that arising from the present contention respecting the 
organization of the house of representatives. While we deplore the 
occasion which compels us to hear and determine this case, we feel con¬ 
strained by the imperative command of the constitution, and by our 
own conscientious discharge of public duty, to declare these views 
irrespective of policy or expediency. Entertaining the views we do, 
we can not consent to rob the highest judicial tribunal of this State of 
its constitutional rights; nor can we consent to exalt the executive or 
the senate of the State above the demands of justice, of safety, or the 
welfare of the people. 

But if all the unfortunate circumstances should arise which have 
been predicted, disastrous and fearful as they may be, we believe the 
consequences will be more unfortunate to the people of this State, and 


34 


put all the people in greater peril, if this court should, by a majority 
of its members, declare and proclain that the refusal of the governor 
or the senate, or of both, to recognize the constitutional house of rep¬ 
resentatives, wipes the house out of existence, when it is attempting 
to carry on its duties in a legal and lawful way—wipes out the house, 
and takes from the people its most popular branch of the legislature, 
that body which is closest and dearest to their hearts. In all history, 
at all times, in a representative government, the lower house, or the 
“popular branch,” as it is called, has been generally regarded as more 
in touch with the people, with the voters, and therefore more closely 
the representative of the people than the senatorial or the longer-term 
body of the legislature. If the senate, consisting of 40 members, may, 
with the governor, decide by recognition what persons, whether elected 
or not, are members of the house of representatives, and what body, 
whether elected or not, is the house of representatives, then a majority 
of the senate, with the governor, being only 22 officials, may over¬ 
throw the constitutional house of representatives and abolish 125 
officials, such officials being the members of the largest body or branch 
of the legislative assembly. 

If the action of the governor and the senate can do that now, then 
two years ago Gov. Humphrey and the senate, which was almost unani¬ 
mously of his own political party, might have recognized a minority of 
the other house, and with such recognition could have reelected Senator 
John J. Ingalls to the United States Senate and defeated Senator Pef- 
fer, and could have then carried on all business under the rule of recog¬ 
nition. If the present governor and senate may do this now, another 
governor and another senate may follow the example; and hereafter, 
for all time, with the sanction of this court, the legislature will be com¬ 
posed of the governor and one house, recognizing and communicating 
with some other body, whether lawfully elected or not. The election 
of the second body will then be useless, unnecessary, abortive. Under 
such a practice we would have two houses in name, but only one in 
fact; the one subservient to those that recognize it, but not independent, 
and not representing fully all the people. Either we would have such 
an anomalous condition of affairs, or else, at every organization of the 
legislature, or of either house, we would have at the capitol of the State 
the clash of resounding arms and the contention of armed forces. In 
such a case force, and force only, would rule, and not law. At such a 
condition we stand appalled; and, if a contrary doctrine than here an¬ 
nounced be maintained, such a condition of affairs will follow. In this 
country, in this State, the law, not physical force, governs. Loyalty 
to law is the first, the paramount, duty of every citizen. 

It is argued on behalf of the doctrine giving the governor and senate 
the arbitrary determination, beyond judicial control, as to what body 
is the house or de facto house of representatives, that power must be 
lodged somewhere; and as officials, and especially superior officials, 
are presumed to do their duty, it is unjust to apprehend serious conse¬ 
quences from unusual, fraudulent, or illegal methods which such officers 
might pursue. Yet this rule, so declared, is not willingly applied in 
the same argument to boards of canvassers (who have been designated 
in contemptuous language as “returning boards merely”), although 
such boards of canvassers, within the decisions of this court, are subject 
to judicial supervision and control. If we may presume that officials 
will fully perform their duty, then such presumption favors boards of 
canvassers, as much as other officials, and therefore the certificates 
issued by such boards, especially by a State board of canvassers, com- 


35 


posed of State officers, ought to be looked upon in the first instance 
with favor, as having been issued rightfully and lawfully. It is incon¬ 
sistent and illogical, especially without proof, to suppose that a State 
board of canvassers, in issuing certificates to the members elected to 
the legislature, have not acted honestly, impartially, and legally. 

We commend to all suggesting that force or men shall rule, rather 
than law, the acts and words of the historic Spartan. When Agesilaus y 
a Spartan general, renowned for all time, was, after years of desperate 
effort, upon the very threshold of success over his ancient enemies, 
the Persians, he was suddenly recalled to Sparta, to the defense of that 
nation against threatened assault of new enemies, but recently friends. 
Upon the instant, he answered, obedient to call of country, and leav¬ 
ing a field of operations pregnant with victory, he returned, to meet 
the call of duty. He sent this message: “Agesilaus to the Ephori, 
greeting: We have reduced part of Asia, put the barbarians to flight, 
and made great preparations for the war in Ionia; but, as you order 
me to return, I am not far behind this letter, and would anticipate it,, 
if possible. I received the command, not for myself, but for my coun¬ 
try and its allies. I know that a general does not deserve or really 
fulfill the duties of that name, but when he suifers himself to be guided 
by the laws and the ephori, and obeys the magistrates.” And by this- 
ebedience, the historian declares, he demonstrated the truth of what 
was said: “That at Sparta the laws ruled men, and not men the laws.” 

In conclusion, speaking for myself alone, and not for my brothers on 
the bench, I adopt substantially the language of Chief-Justice Agnew, 
of the supreme court of Pennsylvania, when, with a courage and firm¬ 
ness worthy of John Hampden,in upholding the dignity and independ¬ 
ence of his court, he said: “On no ground of the constitution, law r 
public justice, State policy, or sound reason, can 1 discover any ex¬ 
emption of any officer in the State, high or low, from the common duty 
all citizens owe to the due administration of justice. I can not abne¬ 
gate a power intrusted to me by the people, and will return to them 
my commission, unsullied by any dereliction of duty, rather than abuse 
this court, and pay obeisance at the shrine of unwarranted power or 
unconstitutional authority.” 

The petitioner will be remanded. 

Johnston, J., concurs. Allen, J., dissents. 

Note. —Soon after this decision was rendered, the Dunsmore house recognized, 
under protest, the Douglass house as the constitutional house of rej>resentatives. 
The two rival houses thereafter acted together as one house only. This was fol¬ 
lowed by the State senate and the governor recognizing the Douglass house. After 
the two" rival houses were united as one house, the legislature continued in session 
about 11 days, and passed all the usual and necessary appropriations for the two en¬ 
suing years," and also enacted other important laws 








37 


5 . 

Senate Mis. Doc. No. 43, Fifty-Third Congress, special session. 


April 13, 1893.—Referred to tlie Committee on Privileges and Elections and ordered 

to be printed. 


Mr. Sherman presented tlie following 

MEMORIAL OF SEVENTY-SEVEN MEMBERS OF THE KANSAS 
LEGISLATURE RELATING TO THE ELECTION OF A UNITED 
STATES SENATOR FROM KANSAS TO FILL THE VACANCY 
CAUSED BY THE DEATH OF SENATOR PRESTON B. PLUMB. 


We, the undersigned legally elected members of the Kansas legisla¬ 
ture, holding certificates of election, and now occupying seats in our 
respective houses, most respectfully protest against the admission of 
Hon. John Martin as Senator from Kansas to fill the vacancy caused 
by the death of Senator Preston B. Plumb, and submit the following 
facts: 

That on the 8th day of November, 1892, at the general election held 
in the State of Kansas, as provided by law, for the election of members 
of the house of representatives and State senators, that in each of the 
one hundred and twenty-five representative districts of the State of 
Kansas the electors met and elected a representative in each of said 
districts, and that in each of the forty senatoral districts the electors 
met and elected a senator in each of said districts. 

That after said election was so held in each of saict representative 
districts and in each of said senatorial districts, the returns from the 
various precincts in each district were duly canvassed by the county 
commissioners in each of the counties in which said districts are located. 

That pursuant to said canvass of the said commissioners the county 
clerk in each of said counties sent to the secretary of state of the State 
of Kansas a certified abstract of the votes cast in each of said repre¬ 
sentative and senatorial districts, which said certified abstracts were 
filed in the office of the secretary of state of the State of Kansas. 

That at the time the election was so held Lyman U. Humphrey was 
the duly qualified and acting governor of the State of Kansas; that 
Charles M. Hovey was the duly qualified and acting auditor of state of 
the State of Kansas; that Solomon G. Stover was the duly qualified 
and acting treasurer of state of the State of Kansas; that William 
Higginswasthe duly qualified and acting secretary of state of the State 
of Kansas, and that John N. Ives was the duly qualified and acting 
attorney-general of the State of Kansas. 

That by virtue of their offices the above-named officers constituted 
the board of state canvassers, whose duty it was after said election to 
meet and organize as a board of state canvassers for the purpose of 
canvassing the returns on file in the office of the secretary of state of 
the State of Kansas. 

That after the election was held the above-named officers of the State 
of Kansas met on the 28th day of November, 1892, in the office of the 







33 


secretary of state, in the capitol building, at Topeka, Kans., and duly 
organized, as provided by law, as tbe board of state canvassers, and 
proceeded to canvass the returns of the election held on the 8th day of 
November, 1892. 

That after the returns had been duly canvassed by the said board, 
they determined from the returns that the following 125 persons had 
been duly elected to the house of representatives to represent their re¬ 
spective districts in the legislature of the State of Kansas, to wit: 


1. J. A. Campbell. 

2. John Seaton. 

3. C. A. Woodw-orth. 

4. C. H. Phinney. 

5. Lewis H. Gest. 

6. Stephen Meagher. 

7. H. C. F. Hackbusch. 

8. McConn Hunt. 

9. J. J. McAleney. 

10. J. K. Cvtbbisou. 

11. A. A. Burgard. 

12. N. Zimmerman. 

13. C. N. Bisboff. 

14. N. Simmons. 

15. Robert H. Semple. 

16. J. B. Remington. 

17. J W. Tucker. 

18. John G. Johnson. 

19. L. B. Pearson. 

20. H. J. Butler. 

21. J. A. Clark. 

22. Hugh Bone. 

23. W. H. Ryan, 

24. C. L. Walters. 

25. Alexander Warner. 

26. ,T. L. Humphrey. 

27. P. A. Morrison. 

28. F. M. Benefiel. 

29. J. M. Dunsmore. 

30. Jacob Lamb, 

31. J. H. Bayer. 

32. T. C. Ballinger. 

33. James Graham. 

34. Thomas Chappel. 

35. A. C. Sherman. 

36. William B. Swan. 

37. James A. Troutman. 

38. Nicholas Kline. 

39. J. F. Pomeroy. 

40. W. W. Price. 

41. R. 1). McCliman. 

42. William Reamer, jr. 


43. A. C. Axelton. 

44. William Knipe. 

45. P. Daugherty. 

46. Joseph Treu. 

47. D. 4V. Eastman. 

48. Charles Moss. 

49. E. W. Claycomb. 

50. G. W. Crumley. 

51. M. B. Chrisman. 

52. Ed. Green. 

53. F. G. Powers. 

54. C.M. Noble. 

55. R. H. Chandler. 

56. E.W.Hoch. 

57. H. E. Richter. 

58. M. P. Kelley. 

59. A. A. Newman. 

60. D. M. Watson. 

61. J. M. Foster. 

62. S. O. Everly. 

63. Geo. McConkey. 

64. P. H. Dolan. 

65. Chas. J. Stromquist. 

66. John E. Frazier. 

67. H. W. Ruble. 

68. Geo. L. Douglass. 

69. F. G. Rawson. 

70. Wm. Hobson. 

71. J. M. Doubleday. 

72. Geo. H. Coulson. 

73. T. S. Benefiel, jr. 

74. Wm. Garrison. 

75. W. F. Brown. 

76. J. F. Greenlee. 

77. J. W. Dix. 

78. Win. Campbell. 

79. M. W. Cobun. 

80. Wm. Kenton. 

81. Joseph Sekavec. 

82. Otis L. Atherton. 

83. A. N. Whittington. 

84. Geo. H. McKinnie. 


85. S. W. Hill. 

86. E. E. Barnett. 

87. J. M. Helm. 

88. P. C. Wagoner. 

89. James S. Shaw. 

90. B. F. Replogle. 

91. SamT 1. Hale. 

92. A. H. Lupfer. 

93. J. G. Wright. 

94. J.W. Davis. 

95. T. G. Chambers. 

96. B.F. Morris. 

97. M. W. Sutton. 

98. T. C. Bowie. 

99. Richard O. Elting. 

100. A. H. Blair. 

101. Levi Pritchard. 

102. W. L. Kerr. 

103. Dan. Caster. 

104. W. J. Barnes. 

105. R. D. Anderson. 

106. J.A. Bucklin. 

107. SamT Way. 

108. L.J. Willits. 

109. Fred E. Yearick. 

110. J.F. Coulter. 

111. W.D. Harris. 

112. W. M. Glenn. 

113. W. J. Chubbuck. 

114. J. F. Pancake. 

115. C. E. Lobdell. 

116. W. R. Hopkins. 

117. F. M. Kelly. 

118. Alfred Pratt. 

119. T. M. Grissom. 

120. Peter Bowers. 

121. A. W. Stubbs. 

122. O. B. Douglass. 

123. James Wilson. 

124. H. V. Nichols. 

125. A. IL Drew. 


They also determined that the following forty named persons were 
duly elected to represent their respective districts in tbe State senate 
of the State of Kansas: 


1. J. B. Williamson. 

2. John M. Price. 

3. Lucien Baker. 

4. Edwin Taylor. 

5. Solon O. Thacker. 

6. J. W. Parker. 

7. Dr. E. T. Metcalf. 

8. W. P. Dillard. 

9. H. M. Reed. 

10. M. A. Householder. 

11. J. H. Reilly. 

12. D. McTaggart. 

13. John C. Carpenter. 

14. Charles F. Scott. 


15. J. W. Leedy. 

16. H. G. Jumper. 

17. William E. Stern. 

18. H. E. Robbins. 

19. James Shearer. 

20. William Rodgers. 

21. A. E. Treu. 

22. N. Seim. 

23. William A. Morgan. 

24. Levi Dumnauld. 

25. A. W. Dennison. 

26. John Helmick. 

27. Louis P. King. 

28. A. G. Forney. 


29. Ed. O’Bryan. 

30. S. T. Danner. 

31. R. E. Baldwin. 

32. George Bowling. 

33. Anson S. Cook. 

34. W. D. Helm. 

35. John Armstrong. 

36. J. M. Leeds. 

37. H. S. Landis. 

38. Milton Brown. 

39. J. E. Willcockson 

40. George E. Smith. 


30 


That after the said board of canvassers had canvassed all the returns 
on file io the office of secretary of state and fully completed their du¬ 
ties as such canvassing board, they, on the 1st day of December, 1892, 
adjourned sine die. 

That after the determination of said board of state canvassers as 
aforesaid, William Higgins, the duly elected, qualified, and acting secre¬ 
tary of state of the State of Kansas, issued certificates of election to 
all those who had been so determined by said board of state canvass¬ 
ers as having been elected to seats in the house of representatives and 
State senate. 


That the certificates of election were duly issued by the said secretary 
of state to each of the above-named members of the house of representa¬ 
tives and State senate. 

That on the 10th day of January, 1893, at the time fixed by law for 
the assembling of the legislature of the State of Kansas, the 125 
persons, whose names are above set forth as having been elected to 
the house of representatives of the State of Kansas, and who held 
certificates of election issued by the secretary of state, met in repre¬ 
sentative hall, in the capitol building, at Topeka, Kans., for the pur¬ 
pose of organizing the said house of representatives. 

That the said meeting of all those entitled to seats as members of 
said house of representatives, as shown by the certificates trom the 
secretary of state, so issued as aforesaid, was at the hour of 12 o’clock 
noon, the same being the usual hour for the meeting of the house of 
representatives for the purpose of organization. 

That after the members had so met in the hall of representatives, 
the members there present so holding certificates proceeded to the or¬ 
ganization of said body. 

That upon the call of the roll of all members to whom certificates of 
election had been issued by the secretary of state in pursuance to the 
determination of the board of state canvassers, sixty-four members 
arose in their places and were duly sworn in as members, and on the 
election of the speaker of the house of representatives, George L. 
Douglass received 04 votes, the same being a majority of all those 
holding certificates of election and entitled to vote on the election of 
speaker of the house of representatives, and was therefore declared 
elected speaker of the house of representatives. 

That upon the call of the roll of all those holding certificates of elec¬ 
tion and entitled to vote on the election of chief clerk of the house of 
representatives, Frank L. Brown received 64 votes, the same being a 
majority of those holding certificates and entitled to vote, and was 
duly declared elected chief clerk of the house. 

That thereupon George L. Douglass took the oath of office adminis¬ 
tered to him as required by law and was duly qualified as speaker of 
the house of representatives. 

That Frank L. Brown took the oath of office as required by law and 
duly qualified as chief clerk of the house of representatives. 

That thereupon the said house of representatives was declared duly 
organized and ready for business; that subsequently thereto in the 
same hall of representatives and on the said 10th day of January, 1893, 
58 persons holding certificates of election to the house of representa¬ 
tives of the State of Kansas, duly issued by the secretary of state in ac¬ 
cordance with the report of State board of canvassers, together with J. 
W. Howard, O. M. Kice, D. K. Howard, Ed Shellanbarger, Y. Gleason, 
W.H. White, H. Helstrom, I. K. Goodvin, F. B. Brown, and John Morri¬ 
son, who held no certifiates and were not elected to the house of rep- 


40 


resentatives of the State of Kansas, but who were defeated in their re¬ 
spective districts, and proceeded to organize a pretended house of 
representatives, in representative hall, by the election of John M. Duns- 
more as speaker and Ben 0. Rich as chief clerk. 

That 58 persons holding certificates of election and 10 persons above 
named, who were not elected and held no certificates of election, have 
since pretended to act as a house of representatives until the present 
time. 

That immediately after the organization of the legal and constitu¬ 
tional house of representatives, of which George L. Douglass is 
speaker, Joseph Rosenthal who held no certificate of election, but 
who was conceded to have been elected from Haskell County, was 
unanimously declared entitled to a seat as a member of said house in 
the place of A. W. Stubbs, to whom a certificate had been issued in 
conformity to the returns of the county canvassers, which returns 
were conceded to have contained an error and said Stubbs being pres¬ 
ent having voluntarily declined to take his seat. Said Joseph Rosen¬ 
thal, has since January 11,1893, acted as a member of said legal house 
of representatives. 

That T. G. Chambers and Stephen Meagher duly elected members 
of the house of representatives, but who did not vote for George L. 
Douglass as speaker, have also, since the 11th day of January, 1893, 
continuously recognized said Douglass as speaker and participated in 
the deliberations of the legally organized house of representatives. 

That there has been no change in the membership of the house of 
representatives by the trial of contests, and no person holding a cer¬ 
tificate of election has been declared not a member of said house, with 
the exception of A. W. Stubbs. 

That on the 10th day of January, 1893, the duly elected members of 
the State senate, as aforesaid, proceeded to organize in the senate cham¬ 
ber as required by law, with Hon. Percy Daniels, lieutenant-gov¬ 
ernor, as presiding officer, and by the election of other officers, as re¬ 
quired by law. 

That there has been no change in the membership of said State 
senate by the trial of contests, and no one who held a certificate of 
election from the State board of canvassers has been declared not to 
be a member. 

That on Tuesday, January 24, 1893, a vote was taken in the senate 
for a United States Senator, which resulted in no one receiving a ma¬ 
jority of all the votes of said body. That on the 24th day of January, 
1893, a vote was taken in the house of representatives which resulted 
as follows: 

J. W. Ady received 62 votes, B. W. Perkins 1, Ed. O’Bryan 2, and 
Ed. Carroll 1. 

That on Wednesday the 25th day of January, 1893, the 40 legally 
elected members of the State senate holding certificates of election, pro¬ 
ceeded to representative hall and went into joint assembly Avitli the 
members of the house of representatives, Lieutenant-Governor Daniels 
presiding. 

There were present in session the 40 senators, and 123legally elected 
members of the house of representatives holding certificates of election 
and Joseph Rosenthal, who was duly elected to said house of represent¬ 
atives, but who had no certificate of election. There were also present 
10 persons who were not members elected to the house of representa¬ 
tives and who held no certificate of election, and who had not been 
sworn into the legal and constitutional house of representatives, but 

t 


41 


who participated in the organization of the pretended house of repre¬ 
sentatives, of which J. M. Dun sin ore is speaker. 

The president of the joint assembly unlawfully and without authority 
of law directed Ben C. Rich, chief clerk of the pretended house of 
representatives, to call the roll of the pretended house of which Duns- 
more is speaker. The roll of this house included those 10 persons who 
were not elected and who held no certificates of election and omitted 
10 persons who were duly elected and held certificates of election. 

Fifteen senators did not respond to the roll call in the first instance 
who were present. 

Sixty-eight legally elected members of the house did not respond 
to their names as called by Ben. C. Rich for the reason that they did 
not recognize him as chief clerk nor recognize the body of which he 
was an officer, as the legally organized house of representatives. 

Twenty-five senators responded to their names, 24 of whom voted 
for John Martin an I 1 for Cobun. 

Fifty-six legally elected members of the house of representatives, 
holding certificates of election, responded to the roll call, 51 of whom 
voted for John Martin, 3 voted for Cobun, 1 for Close and 1 for Snyder. 
Coulson was absent and McAleny refused to vote. 

Of the 10 persons who were not members, but who are upon the roll 
of the pretended house, 9 voted for John Martin and 1 for Hanna. 

After the roll call had been completed, Wilson, the member from 
Meade County, who had not responded to either of the roll calls, arose, 
and, addressing the president, asked and was allowed to cast his vote 
for John Martin. Rosenthal, who had not responded to either of the 
roll calls, also arose, and, addressing the presiding officer, asked and 
was allowed to cast his vote for John Martin. 

Before the result of the vote had been announced, Percy Daniels, 
president, stated that there was a number of senators and representa¬ 
tives who had not voted, but who were present and called the atten¬ 
tion of the joint assembly to the joint rule requiring all members to 
vote. 

Senator Baker thereupon arose, and, before the result of the vote had 
been announced, asked permission on behalf of himself, 14 senators 
and 65 members of the house of representatives to vote for United 
States Senator, but the president refused to permit him or any of the 
persons for whom he had asked permission to vote, and made the fol¬ 
lowing announcement of the result: 

Whole number votes cast 93; of which John Martin received 86, Cobun 4, Close 1, 
Hanna 1, and Snyder 1. 

He then declared John Martin elected Senator, stating that he had 
received a majority of all the votes of the joint assembly. 

Fifteen senators and 62 legally elected members of the house of 
representatives protested against his ruling and against the declara¬ 
tion of the result, claiming that of the 86 votes cast for John Martin, 9 
were by men who were not members of the house of representatives, 
and that John Martin received but 77 legal votes, and that 77 was not a 
majority of the 160 legally elected members of the senate and house 
of representatives, who were present and participating in the joint 
assembly, and insisted that there had been no election, but the Hon. 
Percy Daniels, president of the joint assembly, refused to recognize 
the protest of the said members, and the said Percy Daniels then, upon 
motion, declared the joint assembly dissolved and abandoned the chair. 


42 


Immediately thereupon Senator Baker ottered the following resolution, 
which was carried without a dissenting vote: 

RESOLUTION. 


Whereas there have participated in this joint assembly of the members of the 
legislature for the election of United States Senator, presided over by Hon. Percy 
Daniels, president of the senate, the following persons who are no.t members elected 
to the legislature: O. M. Rice, Fred II. Brown, J. W. Howard, W. H. Mitchell, John 
Morrison, I. N. Goodwin, Ed. Shellabarger, W. H. White, D. M. Howard, and H. 
Helstrom, and who hold no certificates of election, and 

Whereas 15 regularly elected members of the senate, each holding legal certificate 
of election, and 62 regularly elected members of the house, each holding legal certifi¬ 
cates of election, who have all taken their seats in their respective houses, were de¬ 
nied the right to participate in the election of a United States Senator; therefore, 
be it 

Resolved, by the legally elected and certified members of the legislature, that Hon. 
George L. Douglass be elected president of the joint assembly of the members of the 
legislature for the election of a United States Senator, Hon. Percy Daniels, lieuten¬ 
ant-governor, having abandoned the chair, and that we continue the vote for a Sena¬ 
tor in Congress to fill the vacancy caused by the death of Senator Preston B. Plumb. 

Whereupon Hon. George L. Douglass was elected president of the 
joint assembly, and the 15 senators and 62 members of the house of 
representatives who were refused permission to vote by the presiding 
officer thereupon cast their votes for Hon. J. W. Ady. The members 
of the legislature who so cast their votes being the same persons who 
have signed this memorial. The said Douglass, president of the joint 
assembly, thereupon declared that no one had received a majority of 
all the votes cast in said joint assembly and that there was no election 
of a United States Senator. Thereupon the joint assembly adjourned 
until 12 o’clock m. Thursday, January 2G, 1893. 

On Thursday, January 26,1893, at 12 o’clock in., the joint assembly 
met in representative hall, with Hon. George L. Douglass as presiding 
officer; whereupon representative Hoch introduced the following reso¬ 
lution, which was adopted unanimously: 

Whereas one hundred and sixty members of this joint assembly holding legal cer¬ 
tificates were present, and either voting or demanding to vote in the joint assembly 
for the election of a United States Senator, Wednesday, January 25, 1893; and 

Whereas seventy-seven of these legally elected members were denied the right to 
vote in said joint assembly; and 

Whereas if these seventy-seven members of the joint assembly had been permitted 
to vote no one would have had a majority of all the votes cast in said joint assembly, 
and that there would have, therefore, been no election of a United States Senator: 
Be it 

Resolved, By the joint assembly of the two houses, here and now legally assembled, 
that there has been no election of a United States Senator by the Kansas legislature 
this session. 

Resolved, That we enter our solemn protest against this revolutionary and illegal 
transaction, and instruct the president of this joint assembly to appoint a committee, 
to consist of three members of the house and two members of the senate, to prepare 
a formal statement and emphatic protest to the Senate of the United States, to be 
signed by the members of this assemb ly, protesting against the seating of John 
Martin as Senator from this State. 

President Douglass appointed as the committee Messrs. Hoch, Baker, 
Cuppison, Willcoxson, and Hopkins. 

The session then adjourned u without day.” 

Therefore we, the undersigned members of the senate and house of 
represenatives of the State of Kansas, duly elected and occupying 
seats in our respective houses, who were present in representative hall 
on January 25, 1893, at 12 o’clock m., and demanded a right to vote 
while Hon. Percy Daniels was presiding over said joint assembly, and 
were refused, but who did vote for Hon. J. W. Ady after said presid- 



43 


ing officer had abandoned the chair, do protest against the admission 
of Hon. John Martin as a Senator from Kansas, for the reason that he 
did not receive a majority of the legal votes cast in said joint assembly 
and was not elected. 

If only those members elected to the legislature have a right to vote 
in the joint assembly who have taken their seats in their respective 
houses and have participated in the proceedings, then we submit that 
the result of the vote in joint assembly is as follows: 

SENATORS. 


John Martin. 24 

J. W. Ady. 15 

M. W. Cobun. 1 


MEMBERS OF HOUSE. 


J ohn Martin. 2 

J. W. Ady. 62 

Total number of members voting in joiut assembly, 107. 

John Martin. 26 

J. W. Ady. 77 


We demand that the Senate of the United States make a full and 
complete investigation of the unhappy and unfortunate situation exist¬ 
ing in our Sta te legislature, to the end that justice may be done and that 
no one be seated in your body as the result of revolutionary proceed¬ 
ings, striking at the foundation of good government. 

S. O. Thacher, Senator, 5th District. 

F. M. Benefiel, Representative, District 28. 

Y. W. Price, Representative, District 40. 

R. H. Chandler, Representative, District 55. 

H. E. Richter, District 57. 

M. W. Sutton. 

C. E. Lobdell, 115. 

J. F. Pomeroy, 39. 

N. Kline, 38. 

J. G. Johnson, 18th District. 

McCoun Hunt, 8th District. 

H. C. F. Hackbusch, 7th District. 

N. Simmons, 14th District. 

Alfred Pratt, 118th District. 

M. B. Chrisman, 51st. 

Jacob Lamb, 30th. 

O. B. Douglass, 122d. 

J. A. Campbell, 1st. 

Peter Bowers, 120tli District. 

Jno. E. Frazer, 06th District. 

J. H. Bayer, 31 sr District. 

J. Ballinger, 32d District. 

A. H. Blair, 100th District. 

F. M. Kelley, 117th District. 

E. W. Claycomb, 49th District. 

C. H. Phinney, 4th District. 

E. W. Hoch, Rep., 50tli Dist. 

Lucien Baker, Senator, 3d Dist. 

J. K. Cubbison, Rep., 10th Dist. 

W. R. Hopkins, Rep., 116th Dist. 









44 


W. D. Harris, Rep., 111th Dist. 

W. M. Glenn, Rep., 112th Dist. 

R. D. Anderson, Rep., 105th Dist. 

A. 0. Sherman, Rep., 35th Dist. 

W. B. Swan, Rep., 30th Dist. 

Alexander Warner, Rep., 25th Dist. 

J. B. Remington, Rep., 10th Dist. 

T. 0. Bowie, Rep., 98tli Dist. 

R. O. Elting, Rep., 99th Dist. 

N. Zimmerman, Rep., 12th Dist. 

S. I. Hale, Rep., 91st Dist. 

James T. Troutman, Rep., 37th Dist. 

Henry J. Butler, Rep., 20th Dist. 

J. W. Davis, Rep., 94th Dist. 

Samuel Way, Rep., 107th Dist. 

John Seaton, Rep., 2nd District. 

L. B. Pearson, Rep., 19th Dist. 

A. G. Axelton, Rep., 43d Dist. 

William Knipe, 

H. P. Robbins, Senator, 18th Dist. 

D. W. Eastman, 47tli District. 

John F. Coulter, 110th District. 

James S. Shaw, 89th District. 

L. J. Willits, 108th District. 

Otis L. Atherton, 82d District. 

J. M. Foster, 01st District. 

J. W r . Dix, 77th District. 

C. J. Stronquist, 05th District. 

Geo. L. Douglass, 68th District, and Speaker. 
H. V. Nichols, 124th District. 

Wm. Raemer, 42d District. 

C. N. Bishoff, 13th District. 

Jno. C. Carpenter, Sen., 13th District. 

Chas. F. Scott, Sen., 14th District. 

K. E. Willcockson, Sen., 39th District. 

W T . A. Morgan, Sen., 23d District. 

James D. Williamson, Sen., 1st District. 

S. T. Danner, 30th Sen. District. 

J. F. Greenlee, 70th District. 

John M. Price, Sen., 2d District. 

W. E. Sterne, Sen., 17th District. 

E. T. Metcalf, Sen., 7th District. 

J. W r . Parker, Sen., 0th District. 

D. McTaggart, Sen , 12th District. 

W. J. Chubbuck, 113tli District. 

William Hobson, 70th District. 

Milton Brown, Senator, 38th District. 


45 


O. 


Topeka, Kans., June 6 , 1893. 

Dear 8>ik : Inclosed please find statement of facts on which iny 
claim to a seat in the United States Senate is based, together with 
comments, as requested in your letter of April 15. 

For the convenience of Senators I have had this statement printed 
and will forward a copy to each member of the committee and to other 
members ot the Senate, it there is no objection to that course. Messrs. 
Shellabarger & Wilson, of Washington, D. 0., are my attorneys, and 
are authorized to represent my interest with the committee in all mat¬ 
ters that may arise in the further consideration of my contest. 

1 have the honor to remain, very sincerely, yours, 

Joseph W. Ady. 

Hon. Z. B. Vance, 

Chairman Committee on Privileges and Elections, 

Washington , I). C. 


To the Chairman of the Committee on Privileges and Elections of the 

United States Senate: 

In response to your request for a statement of all the facts on which 
my claim for a seat in the United States Senate is based, with such 
comments as I see fit to offer, I respectfully submit the following: 

STATEMENT OF FACTS. 

Under the constitution and laws of the State of Kansas “the legis¬ 
lature” of the State consists of a house of representatives of 125 mem¬ 
bers and a senate of 40 members, and u a majority of each house shall 
constitute a quorum.’ 7 

On the 10th day of January, 1893, the date provided by law for the 
organization of the legislature, the senate was duly organized with 40 
members. Hon. Percy Daniels, lieutenant governor, is ex-officio presi¬ 
dent of the senate. 

At the November election, 1892, 125 persons were elected, and in due 
time received their certificates of election to the office of representa¬ 
tive. On the 10th of January, 1893, at 12 o’clock m., the time fixed by 
law for the organization of the legislature, 04 persons, who were elected 
and held certificates to the office of representative as above stated, met 
in Representative hall and organized the house by electing Hon. George 
L. Douglass speaker,, and Frank L. Brown, chief clerk, and the other 
usual officers of said body. Sixty-tliree of these persons were Republi¬ 
can, and 1 an independent, in politics. Immediately on the perfection 
of this organization, a resolution was adopted declaring Joseph Rosen¬ 
thal, a Democrat, to be entitled to a seat instead of A. W. Stubbs, a 
Republican, who held a certificate of election through an error of the 
county clerk of Haskell County in certifying the returns. Mr. Stubbs 
did not participate in the organization of the house. The house so 
organized, promptly notified the governor and senate of its organiza¬ 
tion. 

On the 12th day of January Hon. Stephen Meagher, Hon. T. G. 
Chambers, and Hon. Joseph Rosenthal, the 3 Democratic u members 



46 


elect” to the house of representatives, took their seats, filed their oaths 
of office, and subscribed the roll of membership according to the usual 
custom, and became “ members” of the house, which then and there¬ 
after consisted of 07 “members.” The house so organized continued 
in session Irom day to day until the 13th day of March, 1893, when it 
adjourned sine (He. No other “member elect,” except the 07 above 
stated, ever took his seat in the house or answered to its roll call, or 
in any manner identified himself with the membership of the house, until 
the 27th day of February, 18 ‘3, which teas thirty-three days after the joint 
assembly for the election of United States Senator. On the date last 
mentioned the other persons who held certificates of election pre 
sented themselves as “members elect,” and were admitted to seats in 
the house. These 58 “members elect” were not absent from the 
house, prior to that date, by reason of accident, necessity, or inad¬ 
vertence, but were so absent willfully and intentionally in pursuance of 
a scheme having for its purpose among other things, to assist in the 
election of a United States Senator by the importation into that elec¬ 
tion of the votes of persons who were not “members of the legislature.” 
During this time they continued from day to day, in open contempt of 
the house of representatives, to disturb its proceedings and defy its 
authority in the presence of the house while in session. 

At the date of the joint assembly for the election of United States 
Senator, which was January 25, 1893, “the legislature” of the State 
of Kansas actually consisted of a senate of 40 “members” and the 
house of representatives of 67 “members.” This was the whole mem¬ 
bership of the senate, and a quorum—a majority—of the members 
elected to the house. In “joint assembly”—“the members of the two 
houses”—constituted as above stated, voted as follows: 

Senators voting for Mr. Martin... 24 

Representatives voting for Mr. Martin. 2 

Total.... 26 


Senators voting for Mr. Ady. 15 

Representatives voting for Mr. Ady. 62 

Total. 77 


One senator, Mr. Senn, voted for Mr. Cobun, and 3 members of the 
house, viz, Meagher and Chambers, Democrats, and Powers, Repub- 
lican, were absent or not voting. This was “ a majority of each house ” 
as well as “a majority of all the members elected to both houses,” as 
required by the act of Congress. Of the joint assembly so constituted 
I received a majority—77 votes. If only “ members of the tico houses ,” 
as constituted when the joint assembly is held, can vote for .United 
States Senator, the conclusion that I was elected is unavoidable. 


THE DUNSMORE HOUSE. 

But the election of my opponent was declared by counting the votes 
cast by “members ” of a body that was neither the senate or house of rep¬ 
resentatives of the State of Kansas, but which was composed of 58 per¬ 
sons who held certificates of election to the office of representative 
and 11 other persons who were defeated candidates for that office, and 
by refusing to call the roll or consider the votes of the house of rep¬ 
resentatives. These 58 persons are the same persons who finally took 
their seats in the house of representatives on the 27tli day of Feb¬ 
ruary, 1893, which was thirty-three days after the joint assembly. 










47 


This "was called. “ the Dunsmore house,” and its history, so far as it 
touches this question, is as follows: 

On the 10th day ot January, 1893, the 58 Populist u members-elect” 
ot the house assembled in representative hall, together with the other 

members-elect.” They took no part in the organization of the house, 
but immediately after the completion of that organization separated 
themselves Irom the u members” who had organized, and proceeded to 
organize a so-called house of representatives. To make the appear¬ 
ance of a quorum some persons, with no pretense of authority, substi¬ 
tuted the names of 10 persons who were defeated at the x>oils for the 
names ot 10 persons legally appearing on the roll of “members-elect.” 

The body so constituted assumed to elect J. M. Dimsmore speaker 
and Ben 0. Rich chief clerk with the other usual officers of a house 
of representatives. This body was in due time recognized by the 
governor and by the senate, by the vote of the 2 ’ Populist members, 
who were a majority of that body, as the house of representatives. 
This body continued to act as a house of representatives, with the 
continued recognition of the governor and senate, as above stated, 
until the 27th day of February, when it was disbanded. The members- 
elect took their seats in the house. The persons who had assumed to 
act in the Dunsmore house without any title to the office of represent¬ 
ative retired to their respective places of abode without preferring 
any pretense to a seat in the house. The names of these persons, 
with the numbers of the districts they assumed to represent in the 
Dunsmore house, are as follows: 


J. W. Howard . 

O. M. Rice. 

D.. N. Howard .. 
Ed. Sheliabarger 

D. Gleason. 

W. H. White ... 

H. Helstrom_ 

I. D. Goodvin_ 

F. B. Brown_ 

John Morrison .. 


1 

32 

35 

38 

49 

57 

65 

99 

120 

123 


Some days after the organization of the Dunsmore house, W. C. 
Mitchell, also a defeated candidate, took a seat in that body as repre¬ 
sentative from the seventy-seventh district, making 11 so-called “ fiat 
members” of that body. During all the time these persons w r ere 
assuming to represent the respective districts stated, there was sitting 
in the house of representatives a duly elected and qualified member 
holding a certificate of election from each of the said districts, whose 
title to such seat was never contested in the house. 

In the joint assembly 50 of the 58 members elect of the Dunsmore 
house voted for Mr. Martin. Of the 11 “ fiat members,” who had no 
title to office, the following, viz, J. W. Howard, D. N. Howard, Shel- 
labarger, Gleason, White, Helstrom, Mitchell, Goodvin, Brown, and 
Morrison—10, voted for Mr. Martin, and one of the “ fiat members,” 
viz, Mr. Rice, voted for Mr. Hanna. 

Adding the 50 votes of “ members elect” in the Dunsmore house to 
the 26 votes cast by “ members” of the house of representatives and 
of the senate for Mr. Martin, it makes a total of 76 votes for him, while 
I had the votes of 77 members who had identified themselves with the 
house to which they were elected, and wdiose title is unquestioned. 
Adding again the 10 votes cast by persons who were neither “ mem¬ 
bers” nor “members elect” and we have the total of 86 votes on wdiich 
his election was declared. 












I suppose it goes witli the mere saying that the 10 persons who were 
not elected, and who were in excess of the number that can be elected 
under the constitution, who voted for Mr. Martin were not legal electors. 

Neither were the “ members elect”—persons who had been elected, 
but had never signified their acceptance of the office by identifying 
themselves with the house—entitled to vote as “ members of* the house.” 
They had remained out of the House willfully and purposely and in 
pursuance of a conspiracy, having for its object, among other things, 
the importation of these illegal rotes into this election. In organizing the 
Dunsmore house the Populist minority did not act unadvisedly, or in 
good faith, on the exigencies of the moment, arising unexpectedly, but 
proceeded on a well-matured plan and purpose theretofore declared, for 
the minority of members elect to “ organize the house,” and maintain it 
by military force, if necessary. That this purpose did exist and that State 
officers and the Populist majority in the senate were parties to it, are 
matters of common knowledge in Kansas. Such a purpose was freely 
avowed by the leaders of that party; and was openly advised and 
urged from the platform by those in authority, in the speeches made in 
connection with the inaugural ceremonies held in representative hall 
on the day and night previous to the organization of the legislature. 

A “ member elect,” who had in good faith been absent from the 
house prior to the joint convention, would presumably identify him¬ 
self with the house immediately thereafter; but after the joint assem¬ 
bly in this case the “members elect” still remained out of the house, 
and on the lath day of February the militia was actually called out 
and ordered by the governor to “remove from representative hall all 
persons not recognized by J. M. Dunsmore as members.” His purpose 
was to forcibly eject the eleven members whose seats the eleven “fiat 
members” of the Dunsmore house were attempting to usurp and the 
executive and clerical force of the house, and thus dissolve the legal 
and constitutional house of representatives by military force. The 
order teas given to Col. Hughes, who was in command, and the con¬ 
summation of this high crime was only averted by the patriotic refusal 
of the militia to obey and a heroic protest from the loyal people of this 
State. On the 18th day of February the district court of Shawnee 
County, in an action therein pending of the State on relation of the 
county attorney against the State treasurer, awarded an injunction 
perpetually restraining the treasurer from paying the per diems of 
members under an appropriation act passed through the Dunsmore 
house, and declared in its judgment that so-called “house” to be an 
illegally constituted body. This decision was ignored by that body. 

On the 5th day of February, in the case of In re Gunn, which was 
an original proceedings in habeas corpus brought by L. C. Gunn for a 
discharge from alleged illegal restraint, under a warrant issued by 
Speaker Douglass, for contempt of the house in refusing to obey its 
process, and after a patient hearing of the whole controversy the 
supreme court decided in terms that the house presided over by 
Speaker Douglass was the house ot representatives of the State of 
Kansas, and had authority to punish contempts of its lawful process. 
Pending the trial of this case violent and threatening speeches and 
resolutions were indulged in by the Populist majority in the senate, 
denying the jurisdiction of the court to decide a case involving the 
legality of the organization of the house, notwithstanding the fact 
that the supreme court, under the constitution of this State, has orig¬ 
inal jurisdiction in habeas corpus, and notwithstanding the fact that 
the petition of Mr. Gunn alleged that he was illegally restrained of his 


49 


liberty under a warrant issued by a pretended speaker of a bouse of 
representatives which he alleged was an illegal organization. It was 
made a question and solemnly discussed by the Dunsmore house, the 
Populist majority in the Senate, and the State officers whether they 
would “bow to the decision of the court” or resist. Finally, on the 
li7th day of February, the Dunsmore house disbanded, as before stated, 
and then for the first time the “members elect” who had acted with 


that organization appeared in the house of representatives and accepted 
tin* seats to which they were elected. 

But if further proof of the want of good faith of the Populists or of 
their consciousness that the Dunsmore house was an illegal body is 
needed 1 call attention to the fact that the State treasurer admitted, 
as a witness on the trial of the Gunn case, that on the night after the 
passage of the legislative appropriation act, under which he was 
enjoined, as above stated, on the ground that the Dunsmore house was 
an illegal body, he remained in his office all night, at the request of Mr~ 
Dunsmore and others, so that he could pay out money under that act 
after its publication at midnight and before an injunction could be 
served, which he understood was in contemplation, and which was 
served about 11 o’clock the next day, and that during this interval he 
did pay out over $18,000. 

Ben C. Rich, chief clerk of the Dunsmore house, admitted, as a wit* 
ness on the same trial, that, notwithstanding the fact that the Dunsmore 
house had a quorum from the beginning by counting the so-called 
“ fiat members,” yet he began on the 10th day of January, under the 
direction of Speaker Dunsmore, to count Republicans who were in the 
hall at the time of roll call, but who did not respond and were not 
members of that organization, sufficient to make a quorum without 
including the “fiat members,” and that he continued this proceedings 
on subsequent legislative days whenever there was a roll call. 


JOINT ASSEMBLY. 

But the lieutenant-governor, who acted as president of the joint 
assembly, arbitrarily refused to consider the votes cast for me in that 
assembly. The history of that assembly is as follows: 

On the 24th day of January, 1893, the time fixed by Taw, a vote was 
taken in each house separately, which resulted in no choice, but at 
which I received in the senate 15 votes and in the house 62 votes. 
On the next day, Wednesday, January 25, at 12 o’clock m., the mem¬ 
bers of the senate entered representative hall and took their seats 
in the presence of the members of the house of representatives and 
of the members of the Dunsmore house. The lieutenant-governor r 
Daniels, assumed to act as president of the joint assembly, and ordered 
the secretary of the senate to call the roll of that body, to which 
24 senators responded. He then directed Ben G. Rich, clerk of the 
Dunsmore house, to call the roll of that body, to which 67 persons 
responded. He did not call upon the clerk of the house of repre¬ 
sentatives to call the roll of the house, but on the result of the senate 
and Dunsmore house roll call declared that 91 members of the joint 
assembly were present. These 91 persons included the 11 persons 
acting with the Dunsmore house who were not elected. The lieutenant- 
governor then ordered the secretary of the senate to read the journal 
of proceedings on the election of Senator in the senate yesterday, 
which was done. He then said: “Chief Clerk Rich will read the pro¬ 
ceedings of the house in reference to the Senatorial election,” whereupon 


Mr. Ben C. Kiel) reported the proceedings of the Dunsmore house, and 
without calling for a reading of the journal of proceedings in the house 
of representatives the lieutenant-governor directed a vote to be taken 
for United States Senator. 


The secretary of the senate called the roll of senators, to which 25 
members responded, 24 of whom voted for Mr. Martin and 1 senator, 
Mr. Seim, voted tor Mr. Cobun. The lieutenant governor then said: 
u Chief Clerk Kick will call the roll of the house for the same purpose. 


He thereupon called the roll of the Dunsmore house, to which <>7 per¬ 
sons responded, of whom 50 persons responding to the roll call were 
members elect to the legislature, but who had never taken their seats 
in the house of representatives. Fifty of these 56 persons voted for 
Mr. Martin. The 11 persons who were not members elect, but who 
were acting in the Dunsmore house as members thereof, also responded 
to the roll call of Mr. Kich, as follows: J. W. Howard, D. U. Howard, 
E. Shellabarger, D. Gleason, W. H. White, H. Helstrom, I. X. Good- 
vin, F. B. Brown, John Morrison, and W. C. Mitchell—10 voting for 
Mr. Martin and 1, O. M. Kice, voting for Mr. Hanna. 

Upon the completion of the roll call of the Dunsmore house by Mr. 
Kich, 2 members of the house of representatives, namely, Mr. Wilson, 
an Independent, and Mr. Kosenfhal, a Democrat, arose, addressed the 
president of the assembly, and voted for Mr. Martin. 

24+2+50+10=86. 

President Daniels then called attention to the fact that certain sena¬ 
tors present had not voted, and called attention to a rule requiring 
them to vote, but, after consultation with a number of members, stated 
that he would not enforce the rule at this time, whereupon Mr. Baker, 
senator from Leavenworth County, asked leave to vote for United States 
Senator and was informed by the president that he was out of order. 
Senator Baker then demanded the right to vote on behalf of himself 
and 14 other senators and 62 members of the house of representatives 
who were present in the joint assembly and had not yet voted, to cast 
their votes for United States Senator. To this demand the president 
responded, declaring that the senator was out of order. This all tran¬ 
spired before the result of the vote was announced and before an elec¬ 
tion was declared. The result of the vote in the senate was then 
reported by the secretary and the result of the vote in the Dunsmore 
house was reported by Mr. Kich, upon which the president of the 
assembly, without permitting a roll call of the house of representatives, 
declared Mr. Martin elected and declared the joint assembly adjourned, 
whereupon, without leaving their seats, the 15 senators and 62 repre¬ 
sentatives, who had not been permitted to vote by this arbitrary action 
of the lieutenant governor, elected Hon. George L. Douglass president 
of the joint assembly and proceeded to cast their votes for United 
States Senator, in which I received the votes of 15 members of the sen¬ 
ate and 62 members of the house of representatives. This proceeding 
was taken as a continuation of the joint assembly and for the purpose 
of permitting members of the joint assembly who had not been per¬ 
mitted to vote to cast their votes tor United States Senator. 

President Douglass then declared that no person had received a 
majority of all the votes cast in the joint assembly and the assembly 
adjourned until to-morrow. The next day at noon the 77 members who 
voted for me met and adopted a memorial, which appears at pages 110 
to 117 of the House Journal. The original memorial signed by the 77 
members is in the hands of the committee, having been introduced into 
the Senate by Senator Sherman and referred to the Committee on 
Privileges and Elections. 


COMMENTS. 


petition tor a contest in this case presents two propositions: 

First, i hat Hon. John Martin was not elected to till the unexpired 
term ot Hon. P. B. Plumb, ending March 4, 1895. 

Second. That I was elected for said unexpired term. 

In support ot these propositions 1 desire to call attention to the fact, 
tirst, that if all “members elect ” (those who have not signified their 
acceptance of the office to which they were chosen by identifying 
themselves with the house as well as the “ members who have taken 
their seats in the house) were entitled to vote in the joint assembly, 
then there were IhO legal votes cast in the joint assembly, of which Mr. 
Martin received 70, I received 77, and 7 were cast for other parties; no 
person received a majority and, therefore, there was no election. Then 
Mr. Martin’s title fails. 

Second, if a “ member elect, ” who has refused to accept the seat in 
the house to which he is elected, and who at the time of the joint 
assembly has no intention of accepting his seat in the house, cannot go 
in and vote as a member of the house at the joint assembly, then there 
were 104 legal votes cast at that joint assembly, of which I received a 
majority—77 votes—and was, therefore, elected. 

There is no defensible theory on which the title of my opponent can 
rest. It does rest on the 24 votes he received from the Senate, the 2 
votes he received from the house of representatives, and the 60 votes 
he received from the Dunsmore house. 


The mere statement of these facts presents the striking solecism in 
government. “ The legislature ” consists of the senate and house of rep¬ 
resentatives. A large majority of Mr. Martin’s votes were received from 
a third body, the Dunsmore house. It was not the senate. It was not 
the house of representatives. It was not a de facto house of represent¬ 
atives, for a legal, constitutional, de facto, and de jure house of repre¬ 
sentatives was then organized and holding its regular sessions in rep¬ 
resentative hall at the State capitol. But it had illegally assumed to 
exercise the functions of the house of representatives and was there¬ 
fore a revolutionary body. 

Can the members of such a body vote in joint assembly for United 
States Senator? If they can, by what authority? Under what law? 
The law of Congress provides that“ the legislature of each State * * * 
shall, on the second Tuesday after the meeting and organization thereof, 
proceed to elect a Senator m Congress.” “Each house shall openly, by 
a viva voce vote of each member present, name one person for Senator 
in Congress.” “At 12 o’clock in. of the day following * * * the 

members of the two houses shall convene in joint assembly.” If no 
person has been elected in the separate proceedings of the two houses 
“the joint assembly shall then proceed to choose, by a viva voce vote 
of each member present, a person for Senator.” This fixes what bodies 
shall vote. It is the “two houses.” It declares who shall constitute 
the joint assembly, it is “the members of the two houses.” It declares 
who shall be electors in the joint assembly,” they are “the members of 
the two houses.” 

There can be no controversy as to what “two houses” constituted 
“the legislature ” of this State at that time, and at all times during 
that session. That the Dunsmore house was not either house of “the 
legislature” is equally apparent, whether we construe the facts or the 
decision of the supreme court of this State. Then that body, under the 
law, had no part in the initial proceedings which were to be had in each 


52 


house acting separately. Wliat transpired in the Dunsmore house on 
the first day is as irrelevant as what transpired in the common council 
of the city of Topeka on that day. Had I received a majority of the 
senate, as I did in the house, could my title have been successfully 
questioned, although Mr 4 Martin might have, at the same time, received 
a majority in the Dunsmore house? Yet I would not have received a 
certificate of election, because the lieutenant governor took no account 
of what transpired in the house of representatives, but acted entirely 
on the record of proceedings in the senate and the Dunsmore house, 
and because the governor would not recognize any action of the house 
of representatives. 

1 know of no deliberative assembly in which the first principles of 
the law of parliament are recognized, from the most inconsiderable 
town meeting up to the august body that is called upon to decide this 
case, in which any person is considered a member and entitled to take 
part in its deliberations until his credentials have been received and 
approved and he has been recognized as a member by the body and 
its presiding officers. When the joint assembly meets, which is two 
weeks after the meeting of the legislature, the membership of each 
house is determined; the individuals who are members are known, and 
may be recognized by an officer lawfully chosen and authorized for that 
purpose, designated as president of the senate and speaker of the house. 
When a member who is so recognized arises in joint assembly to vote, 
his quality as such member is known and his right to vote is apparent. 

But if a person who has not identified himself with either house 
arises in joint assembly to vote the case is very different. W T ho can 
know that he ever was elected, or that he lias a certificate of election, 
or that he is the person named therein, or that he is eligible to a seat 
if he had been elected? The Populist answer to these questions, while 
they were under consideration at Topeka, as gravely expressed by a 
distinguished member of that party, was triumphant and, to them, 
apparently satisfactory. He said: “I suppose a man ought to know 
whether he is elected or not,” but will honorable Senators who have 
not been initiated into the household of faith be content with that 
answer. 

The Dunsmore house was no bouse at the time of the joint assembly. 
The assumed “members elect” to the legislature, who were acting in 
that body, had not been recognized as such by any lawful authority; 
its so-called membership had not been purged; whether they were . 
“members elect;” and, if so, whether they were eligible to seats in the 
house of representatives, ay as unknown. And it must not be forgot¬ 
ten that the votes received by Mr. Martin Avere not given on the roll 
call of the house of representatives, but on a roll call of this illegal 
body by a person who Avas not a member of the authorized clerical 
force of the house of representatives. Under such procedure who can 
know who votes? But that was not all. The lieutenant-governor, 
upon these proceedings, declared the election of Mr. Martin, Avithout 
permitting a roll call of the house of representatives, and Avithout con¬ 
sidering the A T otes of G2 members given on that roll call, or the Azotes of 
fifteen senators avIio demanded the right to vote before any result was 
announced. 

Thus it will be observed that, the letter, and the reason, and spirit 
of the act of Congress contemplate that only actual members of the two 
houses as then constituted shall participate in the joint assembly. 

But suppose it be assumed that “members elect,” avIio are in a 
third house, which has been organized in good faith, and upon a bona 


53 


fide dispute may participate in the joint assembly, can that principle 
he invoked in this case where a third house was organized in pur¬ 
suance ot a deliberate plan to control the legislative branch of govern¬ 
ment, notwithstanding the fact they were in the minority, and on a 
contention which is puerile and absurd in the face of all precedent, and 
after the pretense on which they proceeded had been condemned by 
the supreme court in an action brought by themselves prior to the 
organization of the legislature? That is the case here. 

Without the votes of the defeated candidates, who acted as members 
thereof, the Dunsmore house never had a quorum to organize with. 
The case of three of these persons, viz, Shellabarger, Rice, and Mitchell, 
had been by their own application submitted to the supreme court before 
the meeting of the legislature and decided against them. Yet these 
three persons were admitted to seats in that body and two of them 
voted for my opponent. Was this in good faith ? Was it not rather in 
the worse sort of faith and in defiance of all constitutional authority? 

The right of the other eight defeated candidates to assist in that 
organization rested upon the pretense that a candidate whose opponent 


has been declared elected and has received a certificate may, notwith¬ 
standing that fact, participate in the organization if he intends to con¬ 
test, and of course, according to the dogma before stated, knows he is 
elected. I trust this statement will not be accepted as a jest because 
it looks like one. That was the only title by which these men acted in 
the organization of the Dunsmore house. And none of them ever did 
present a contest in the house. Yet all of these men voted for Mr* 
Martin. And the organization thus created was solemnly recognized 
by the governor and the Populist majority in the senate, and was 
recognized as the only house of representatives by the lieutenant- 
governor in declaring the election of my opponent to the Senate. In 
defense of the prerogatives and rights of that organization the func¬ 
tions of civil government in this State were prostrated for a time by an 
appeal to military force. 

In the face of such facts can the suggestion of good faith be enter¬ 
tained for a moment? If such practices are to be indulged in in elec¬ 
tion of United States Senator is not there an end of government by 


law ? 


The distinction taken between “ members” and “members-elect ” is 
well supported by authority. As said in the report of Mr. Dawes in 
the case of Mr. Schenk and Mr. Blair, “No one can be made a member 
against his will. He may be elected without his consent or knowledge, 
for he may be in a foreign land, but to become a member be must not 
only be elected but must take the oath of office.” (McCreary on Elec¬ 
tions, 2d ed., sec. 242.) 

“ If a member-elect refuses to qualify he will be discharged from 
being a member with more or less obloquy, or none at all, according to 
the circumstances of his case, but he can not be expelled, because he 
can not as yet discharge the duties of a member.” (Cushing’s Law and 
Practice, sec. 272.) 

“ Until a member has qualified and taken his seat the body to which 
he was elected as a member has no jurisdiction over him to compel the 
performance of his duties, neither can he be admitted to the privileges 
of the body.” (McCreary on Elections, sec. 210.) 

“Until he has taken his seat in the house and been recognized as a 
member thereof he can not be regarded as a member subject to the 
duties, rights, and privileges of the body, notwithstanding the fact he 
may have been elected to the office.” 


Referring again to the report of Mr. Dawes (Report of Committees, 
first session, Thirty seventh Congress, No. 110, p. 7), quoting from 
Simeon in his work on elections, “It (referring to the statute concerning 
membership in Parliament) clearly refers only to a complete member 
who has actually taken his seat and has the power of acting or voting, 
but before the member has taken his seat according to the forms of the 
house (especially since oaths are required to be taken) he can not exer¬ 
cise his privilege.” 

A similar distinction between “members-elect” and “members” has 
long been recognized by the Senate. The rule, as stated at page 10, I 
believe, of Taft’s Contested-Election Cases, that a member-elect does 
not become a member of the body until he presents his credentials and 
signifies his acceptance. 

The technical objections to my title as here asserted are: 

First. That the lieutenant governor had declared the joint assembly 
adjourned before the 77 members voting for me had voted, and 

Second. That President Douglass declared that no person had 
received a majority of all the votes cast in the joint assembly and that 
no one was elected. 

The reason for President Douglass’ declaration was an error of law. 
He assumed that all “members-elect” had the right to vote whether 
they had qualified aud taken tlieir seats or not. But whatever his rea¬ 
son was, it is immaterial in a contested-election case, for it is legal 
votes and not declaration of result that elect officers. 

The declaration of lieutenant-governor was made in the face of 15 
members of the Senate who had not voted, but had demanded the 
right to vote before the declaration was made. It was also made in 
the presence of 62 “members” of the house of representatives who 
were like wise demanding the right to vote, and was so made before 
the roll of the “members” of the house had been called. Can the 
lieutenant-governor, when the names of enough of his partisans have 
been called to elect his candidate, arbitrarily refuse the votes of other 
“members” present and desiring to vote and thereupon declare an 
election? The question answers itself. If the “members” whom he 
arbitrarily attempted to disfranchise in this case could not proceed 
with the ballot under such circumstances, then it would frequently be 
in the power of the presiding officer and governor, by this sort of arbi¬ 
trary action, to seat their candidate in defiance of the will of a majority 
of the electors. 

That the subsequent proceedings taken by the 77 “members” was 
intended as a continuation of the joint assembly conclusively appears 
from the declaration of President Douglass, which proceeded on the 
theory that 160 legal votes had been cast, of which Mr. Martin had 
received 76,1 had received 77, and 7 were cast for other parties. Hence 
his declaration that no person had received a majority of all the votes 
cast in the joint assembly. 

In view of all the facts in this case, and the law governing the joint 
assembly, I respectfully insist that there were 101 votes cast in the 
joint assembly, of which I received 77, and was, therefore, duly elected 
to a seat in the United States Senate from the State of Kansas. 

This communication is made to the chairman, because it is invited 
by him, and is not designed to be a full and complete argument or pre¬ 
sentation of the authorities bearing upon my title, but it is a full and 
fair presentation of all the material facts affecting my title to a seat. 

All of which is respectfully submitted. 


Joseph W. Ahy. 



55 


7 . 


IN THE SENATE OF THE UNITED STATES. 


In the matter of the memorial of Joseph W. Ady for an investigation 
of the election of United States Senator in the State of Kansas, to 
fill the vacancy caused by the death of the late Senator Plumb. 


To the Committee on Privileges and Elections: 

I have read and examined Mis. Docs. Nos. 37 and 43, being, respec¬ 
tively, the u Memorial of Joseph W. Ady for an investigation of the 
election of United States Senator in the State of Kansas,” and the 
u Memorial of seventy-seven members of the Kansas legislature relating 
to the election of United States Senator from Kansas,”presented to the 
Senate on 10th and 13th of April, 1893, and referred to your committee. 
These documents challenge the validity of my election as a Senator 
from the State of Kansas. In couqfiiance with your request that I 
submit in writing a statement of all the facts on which 1 claim a right 
to a seat in the Senate, with such comments as I might choose to make, 
I submit the following: 

Under the constitution of Kansas the State senate consists of 40 
members and the house of representatives of 125 members. The elec¬ 
tion for senators and representatives was held as required by law in 
November, 1892. Correct lists of the members of both houses, to 
whom certificates of election were issued by the secretary of state, are 
printed at page 2 of Mis. Doc. No. 43, above referred to; but it is con¬ 
ceded by all parties that Joseph Rosenthal was elected from Haskell 
Count}- (one hundred and twenty-first district) instead of Mr. Stubbs. 
The constitution requires the legislature to meet in regular session on 
the second Tuesday in January in each odd-numbered year, and it did 
so meet on the 10th of January, 1893. No question is raised respecting 
the qualification of any member of the senate. Of the 40 senators 
elected 22 were politically classified as Populists, or members of the 
People’s party, namely: 


Senator Armstrong, 35th district; 
Baldwin, 31st district; 
Bowling, 32d district; 
Cook, 33d district; 
Dennison, 25th district; 
Dumbauld, 24th district; 
Forney, 28th district; 
Helm, 34th district ; 
Helmick, 26th district; 
Householder, 10th district; 
Jumper, 16th district; 


Senator King, 27th district; 

Landis, 37th district; 
Leeds, 36th district; 
Leedy, 15tli district; 
Reid, 9th district; 
Reilly, 11th district; 
Rodgers, 20th district; 
Senn, 22d district; 
Shearer, 19th district; 
Smith, 40tli district; 
True, 21st district. 


Fifteen members of the senate were politically classified as Repub¬ 
licans, namely: 


Senator Baker, 3d district; 

Brown, 38th district; 
Carpenter, 13th district; 
Danner, 30th district; 
McTaggart, 12th district; 
Metcalf, 7th district; 
Morgan, 23d district; 
Parker, 6th district; 


Senator Price, 2d district; 

Robbins, 18tli district; 
Scott, 14tli district; 

Sterne, 17th district; 
Thacher, 5th district; 
Willcockson, 39th district; 
Williamson, 1st district. 


Three members of the senate may properly be classified as follows: 
Senator Dillard, of Eighth district, and Senator O’Bryan, of Twenty- 
ninth district, Democrats, elected by the united vote of Democrats and 
People’s party men; and Senator Taylor, Fourth district, “anti 


\ 





56 * 


Buchan” Republican, elected by Republicans and People’s party men 
against the regular Republican nominee. 

The 125 persons to whom certificates of election were issued as mem¬ 
bers of the house of representatives may be politically classified as 
follows: Republicans, 64; 1 eople’s party, 58; Democrats, 3. One of the - 
Republicans, Mr. Wilson, of Meade County (One hundred and twenty- 
third district), was elected over the regular Republican nominee as an 
Independent candidate, supported by the People’s party. 

The People’s party members claimed that three Republicans, Messrs. 
Bowers, of Grant; Campbell, of Doniphan, and Sherman, of Shawnee, 
were ineligible, being United States postmasters at the time of their 
election. The same claim was originally preferred against Mr. Bit¬ 
ing, of Ness; but the contest in his case was finally placed upon 
the ground of fraudulent votes. The People’s party members also 
claimed that Messrs. Ballinger, of Coffey; Claycomb, of Greenwood; 
O. B. Douglass, of Gray; Dix, of Reno; Kline, of Jackson; Richter, 
of Morris, and Stromquist, of McPherson, had not been legally 
elected, and weie not entitled to seats; and they claimed also, that 
instead of the eleven persons last above named, Messrs. F. B. 
Brown, of Grant; J. W. Howard, of Doniphan; 1). M. Howard, of 
Shawnee; Goodvin, of Ness; Rice, of Coffey; Gleason, of Greenwood; 
John Mornsson, of Gray; Mitchell, of Reno; Shellabarger, of Jackson; 
White, of Morris, and HMstrom, of McPherson, had been elected, and 
were entitled to seats from their respective counties or districts. '1 he 
People’s party members also contended that the persons holding certifi¬ 
cates, whose title to seats was disputed, ought not to take part in the 
organization of the house; but that their respective rights should be 
held in abeyance until the house itself, after due organization, should 
pass upon and determine such rights. Ten of the eleven contestants 
above named appeared at the opening of the session as claimants for 
seats; and the People’s party members contended that if those persons 
who held certificates were admitted to seats pending a settlement of the 
question of their title as members, then, and in that case, the contestants 
were equally entitled to seats until their respective claims should be 
determined by the house. 

The 125 members holding certificates (including Mr. Rosenthal in 
place of Mr. Stubbs) met in the hall of the house at the hour fixed 
by the constitution for the house to assemble. Two separate organi¬ 
zations were effected, but before either was consummated, members of 
both political parties engaged in a discussion of some length respect¬ 
ing the questions at issue between their respective parties. The Peo¬ 
ple’s party organization was duly effected by counting as present and 
participating therein the Republican and Democratic members who 
had taken part in the preliminary proceedings, and without counting 
any of the persons who were merely as contestants not holding cer¬ 
tificates of election. This fact appears conclusively at pages 1 to 5 
of the journal of the house, known as the “Dunsmore house.” The 
64 Republicans holding certificates of election effected an organization 
which was known as the “ Douglass house.” Hon. J. M. Dunsmore, 
of Neosho County, was elected speaker of the Dunsmore house, and 
Hon. George L. Douglass, of Sedgwick County, was elected speaker of 
the Douglass , house. Ben. C. Rich was elected chief clerk of the 
“Dunsmore house,” and Frank L. Brown was elected chief clerk of the 
“Douglass house.” 

Each of the two organizations referred to being completed, the ques¬ 
tion as to which house should be recognized by the senate and by the 


governor 


arose, and (whether right or wrong as matter of law) the 



act was ami is that the senate recognized the Dunsmore house, and 
1 etime(l to recognize the Douglass house, and that the governor rec¬ 
ognised the Dunsmore house and refused to recognize the Douglass 
house. 1 lie journal ot the Dunsmore house shows that messages or 
communications from the senate were received almost daily from Jan¬ 
uary 10 to and including the 23d of February, and that sundry mes¬ 
sages were received from the governor, including his biennial message, 
required by the constitution to be communicated to the legislature. 
Inis biennial message was sent to the Dunsmore house on January 
17, and appears in lull in the journal of that body. It was not sent to 
the Douglass house, and the journal of the Douglass house does not 
contain it nor even refer to it. The journals of these two houses are 
printed separately. The extent to which the “Dunsmore .house” was 
recognized by the senate will be seen from the fact that it daily re¬ 
ceived messages from the senate, by the secretary of that body, trans¬ 
mitting sundry matters of information, including fifty or more senate 
bills, and a large number of concurrent and joint resolutions, in which 
the concurrence of the Dunsmore house was requested; and in like 
manner the senate regularly received from the Dunsmore house mes¬ 
sages and communications from the 10th of January until a month or 
more subsequent to the election of United States Senator. The Duns¬ 
more house concurred in the passage of sundry senate bills, and 
adopted many of the senate concurrent resolutions; and the governor, 
still roeognizing the Dunsmore house as the legal house, gave his. 
official approval to twelve or more bills which were originally passed 
by the senate and concurred in by the Dunsmore house. 

The Dunsmore house, assuming that it had been legally and 
constitutional^ organized, appointed a “committee on elections,” to 
which committee the several contest cases were submitted. This 
committee duly inquired as to the facts in each case, and made report 
of their findings and conclusions. These reports appear in full in the 
journal. They were duly adopted by the house, and nine contestants, 
whose claims to seats were established before the election of United 
States Senator, were admitted and sworn in place of certificated 
members, as follows: 


January 20, F. B. Brown, Grant County, 120th district. 

J. W. Howard, Doniphan County, 1st district. 

I). M. Howard, Shawnee County, 35th district. 

O. M. Rice, Coffey County, 32d district. 

Ed. Shellabarger, Jackson County, 38th district. 

January 21, I. N. Goodviu, Ness County, 99th district. 

• January 23, W. H. Mitchell, Reno County, 77th district. 

January 24, Jolm Morrison, Gray County, 122d district. 

January 25, W. H. White, Morris County, 57th district. 

I have taken pains to thus correctly state the status of the house of 
representatives, or of the two houses, as they existed at the time of 
the election under which I claim my seat as a member of the United 
States Senate, because of the claim made in the documents 
before mentioned that my election was effected by means of votes 
cast by persons not entitled to vote as members of the legislature, a 
proposition which I distinctly deny. 

On Tuesday, January 24, the State senate, by the viva voce vote 
of each member present, as required by the act of Congress, named 
one person for Senator in Congress, which votes were duly entered 
upon the senate journal. On the same day each of the so-called two 
houses of representatives proceeded to vote as required by said act 
of Congress, each house keeping a record of its proceedings in that 
regard. Prior to this time the senate had passed “senate concurrent 


58 


resolution No. 7, providing that the two houses should meet in joint 
assembly at 12 o’clock noon on January 25 for the election of a 
United States Senator,” which resolution was transmitted to the 
Dunsmore house on January 21, where it was received and consid¬ 
ered and concurred in, as shown by the Dunsmore house journal. 

On Wednesday, January 25, pursuant to the requirements of said 
act of Congress, and said “ senate concurrent resolution No. 7, v the sen¬ 
ate, together with its president, secretary, and sergeant-at-arms, 
appeared in the hall of the house of representatives. The joint assembly 
Avas organized, the lieutenant-governor (as president of the senate) pre¬ 
siding. The president of the joint assembly recognized the u Duns- 
moro house,” with its speaker and chief clerk, as the legal house of 
representatives. Mr. Speaker Douglass, of the Douglass house, and 
Frank L. Brown, chief clerk of that house, were also present, but were 
not recognized as such officers by the lieutenant governor, nor by the 
joint assembly. The roll of the senate was called by its secretary, 
ay hen the 22 People’s Party senators, and Senators Dillard, O’Bryan, 
and Taylor answered to their names. The 15 Republican senators 
were all present but remained silent. The roll of the house was then 
called by Chief Clerk Rich. The roll so called contained the names of 
55 Republicans who held certificates of election, 3 Democrats (including 
Mr. Rosenthal) who held certificates, 58 People’s Party members ayIio 
held certificates, and the ( J persons who had been seated by the 
Dunsmore house in place of that number of Republican members 
whose seats had been declared vacant. Of this number of persons, 
the 55 Republican members and the 3 Democratic members, although 
all present in the room, failed to respond to their names. The 58 
People’s Party members who held certificates, and the 9 persons who 
had been seated by the Dunsmore house, all answered to their names. 
Was there then a legal u joint assembly ” in session , such as is required by 
the act of Congress t This question I answer in the affirmative. Let 
figures prove it. 

Twenty-one members constitute a majority and a legal quorum of the 
State senate. There were 25 senators present who answered to their 
names. The lieutenant-governor and the secretary of the senate, its 
legal officers, were there and in the discharge of their respective duties. 
There were 58 members of the house of representatives present to whom 
certificates of election had been duly issued, whose seats had not been 
questioned, who responded to their names. Whether Speaker Duns¬ 
more and Chief Clerk Rich Avere or Avere not the rightful officers of the 
u house of representatives,” need not be discussed by me; nor need I 
take into account at all the 9 persons Avho had been seated by the 
Dunsmore house as members. A full senate consists of 40 members, 
and a full house consists of 125 members, the aggregate being 105, a 
majority of which is 83. It is not disputed, even by the “ memorial of 
the seventy-seven members” aaJio seek to have my election set aside, 
that 58 legal and duly certificated members of the house of represent¬ 
atives and 25 members of the senate were present and answered at the 
time and place authorized by Jaw for the purpose of electing a United 
States Senator. These 25 senators and 58 representatives—83 in all— 
equal the number required by the act of Congress to constitute a “joint 
assembly.” Was there “ a majority of all the members elected to both 
houses present and voting ” at the election under which I claim my 
seat as Senator? This will appear from the record of further proceed¬ 
ings of the joint assembly. 

The records show, and the memorials of Mr. Ady and the 77 mem¬ 
bers of the house of representatives recite, that on said 25th of Jan- 


# 


59 


uai y ^\ ie Proceeding's of tlie senate and of the Duusmore house of the 
preceding day were read by direction of the lieutenant-governor, who 
t eieupon announced that no person had received a majority of all the 
votes ot both houses, and that the joint assembly would proceed to 
elect a United States Senator for the unexpired term ending March 4, 
ibJ,); that lie directed the secretary of the senate to call the roll of the 
senate, and upon such call 21 of the 22 People’s Party senators, and 
Senators Dillard, O’Bryan, and Taylor (24 senators in all) voted for 
nie, and Senator Seim voted for Hon. M. W. Cobun. The 15 Republi¬ 
can senators were also called, but remained silent. The president of 
the assembly then directed Chief Clerk Rich to call the roll of mem¬ 
bers ot the house and he called the roll as before, namely, 55 Republi¬ 
can members who held certificates of election, 3 Democratic members, 
5b People’s Party members, who held certificates of election and whose 
seats were not questioned, and also the names of the 9 persons who 
had been seated by the Dunsmore house.* Upon said roll being called, 
54 of the 55 Republican members remained silent, and 2 of the 
Democratic members remained silent. Fifty-seven of the 58 People’s 
Party members holding certificates responded and voted (Mr. Coulson 
of Harper County, Seventy-second district, not voting), and the 9 
persons w ho had been seated as members of the Dunsmore house also 
voted. Excluding wholly the votes of these 9 persons who had been 
admitted by the Dunsmore house in place of that many persons who 
had received certificates of election, and of course excluding the vote of 
Mr. Helstrom already mentioned, and there will remain 59 duly certifi¬ 
cated members of the House u present and voting,” namely, Mr. Ros¬ 
enthal , Democrat; Mr. Wilson , Republican, and 57 People’s Party 
members, whose votes were as follows: 


Members of the house who voted for Joh 

Messrs. Barnes, of Sheridan; , 

Benefiel, of Kingman; 

Bone, of Crawford; 

Brown, of Pratt; 

Bucklin, of Thomas; 

Burgard, of Wyandotte; 

Caster, of Decatur; 

Chappell, of Osage; 

Clark, of Bourbon; 

Cobun, of Barton; 

Crumley, of Elk; 

Daugherty, of Geary; 

Dolan, of Saline; 

Doubleday, of Sumner; 

Everley, of Cloud; 

Garrison, of Barber; 

Gest, of Jefferson; 

Graham, of Osage; 

Green, of Cowley; 

Grissom, of Stanton; 

Helm, of Smith; 

Hill, of Osborne; 

Humphrey, of Labette ; 

Kelley, of Dickinson; 

Kenton, of Rice; 

Kerr, of Norton; 

and Speaker 


n Martin were: 

\ Messrs. Lupfer, of Pawnee; 

McCliman, of Nemaha; 
McConkey, of Ottawa ; 
McKinnie, of Mitchell; 
Morris, of Clark; 
Morrison, of Labette; 
Moss, of Lyon; 

Newman, of Clay; 

Noble, of Butler; 
Pancake, of Scott; 
Pritchard, of Graham; 
Rawson, of Sedgwick; 
Iieplogle, of Ellis; 
Rosenthal, of Haskell ; 
Ryan, of Crawford; 
Sekavec, of Ellsworth; 
Senile, of Franklin; 
Treu, of Wabaunsee; 
Tucker, of Linn; 
Wagoner, of Phillips; 
Walters, of Cherokee; 
Watson, of Washington; 

JVi Ison, of Meade ; 
Whittington, of Lincoln; 
Woodworth, of Atchison; 
Yearick, of Sherman; 

Dunsmore—53. 


*The Dunsmore house journal shows that the name of Mr. Helstrom, of McPherson, 
was also called by Mr. Rich, and that he voted (making 10 not holding certificates), 
and the “memorials” referred to recite the same fact; but as Mr. Helstrom had not 
then been seated by the Dunsmore house his name evidently occurs through some 
oversight. But whether so or not, neither the validity of Mr. Helstrom’s vote nor 
the validity of the votes of the other 9 contestants, need be considered to determine 
the legality of my election. 





60 


Messrs. Campbell, of Stafford; Drew, of Stevens, and Ruble, of 
Sedgwick, voted for Hon. M. W. Cobun—3. 

Mr. Barnett, of Jewell, voted for Fred J. Close—1. 

Mr. Wright, of Edwards, voted for S. H. Snider—1. 

Mr. McAleney, of Wyandotte, voted for Frank Doster—i. 

The foregoing lignres and votes show the number and names of 
“members elected to both houses” of the legislature who were 
u present and voting.” Summarized, they show the status of the u joint 
assembly” and of the aggregate vote received by each person voted 
for, namely: 


Present 

and 

voting. 

Votes 

for 

Martin. 

V otes 
for 

Cobun. 

Scat¬ 

tering 

votes. 

Senators... 



. 25 

24 

1 


Kepresentatives. 




53 

3 

3 

Total. 



. 84 

77 

4 

3 


Let it be observed again that the foregoing figures do not include 
the votes of any persons other than those to whom certificates had 
been issued by the secretary of state, except the vole of Mr. Rosen¬ 
thal, of Haskell, and his right to a seat is unquestioned by anyone. 

For the purpose of this statement I am not called upon either to 
admit or deny the legality of the Dunsmore house as a branch of the 
legislature. 1 have presented the facts upon which the legality of that 
organization was claimed by itself, and upon which (as 1 understand 
it) it was recognized by the governor and the senate as a legal branch 
of the legislature; audit may not be improper to add that it main¬ 
tained its separate organization, aided by the votes of the contestants, 
who were given seats in place of those persons whose election had been 
challenged upon the ground of illegality, and that such organization 
was preserved and legislative business regularly transacted until 
alter the decision of the supreme court had been announced, which 
decision is published in the memorial of Joseph W. Ady (Mis. Doc. No. 
37), in the hands of your committee. I may add further, to show the 
actual condition as it existed at the time, that the Dunsmore house 
and the Douglass house, so called, effected their respective organiza¬ 
tions in the same hall, and that thereafter they continued to occupy 
the same hall or room, which is known as the hall of the house of rep¬ 
resentatives, most of their sessions being held at the same hours. 

Fifty-eight members of the organization known as the a Dunsmore 
house” received and held the same evidence of title as representatives 
as that received by the 64 Republican members of the Douglass house.” 
The act of Congress does not require that there shall be a joint u con¬ 
vention” of the two houses. Its language is, that “the members of 
the two houses shall convene in joint assembly.” Neither this com¬ 
mittee nor the Senate of the United States need be informed by me why 
the language quoted was deliberately employed; but it may not be 
improper to remark, that prior to the passage of that act (25tli July, 1866) 
it happened in several States that the two houses of the legislature 
failed to agree upon a time for a joint convention, the object of one of 
the houses, in such cases, being to prevent the election of a United 
States Senator from such State. It requires no argument to show, that, 
under the language used in the act of 1866, “a majority of all the mem¬ 
bers elected to both houses being present and voting” in the “joint 
assembly,” required by that act to be held, a majority of all the mem- 




















61 


eis elected to at least one of the houses must be present and partici¬ 
pating. in the case under consideration, the Kansas State senate as 
an organized body, with a membership “ present and voting ” to the 
numbei ot four more than a majority, attended in the hall of the house 
°* ^P reseiltatives 011 the day required by the act of Congress. Its 
validity as a Senate, as regards numbers or organization, is not ques¬ 
tioned m either ot the memorials referred to your committee. In addi¬ 
tion to the -Jo members ot the senate present, there were 59 members 
ot the house ot representatives also present, and all legally elected 
and legally qualified. These members of the legislature, 85 in all, 
u being present and voting,” constituted the joint assembly. 

Lpou what ground, then, is the validity of my election as senator 
trom Kansas challenged ? At pages 4 and 5 of the “ Memorial of 
seventy-seven members of the Kansas legislature,” presented to the 
Senate by Senator Sherman and referred to your committee, there 
appears to be a history of the proceedings in the joint assembly. It 
would seem from some of the statements made by the memorialists 
that they base their protest to my election upon grounds which, if true, 
are wholly untenable; but I have taken pains to inquire fully as to the 
tacts in the case, and am satisfied that some of the statements made 
in the memorial at pages mentioned are not true. They say that 
“ sixty-eight legally-elected members of the house did not respond to 
their names as called by Ben. C. Rich, for the reason that they did not 
recognize him as chief clerk,” etc. I am advised that no such objec¬ 
tion, nor any objection of any kind was made before or at the time Mr. 
Rich called the roll of members. It may be remarked incidentally, 
also, that 10 of the “ sixty-eight” members referred to were not called 
at all by Mr. Rich, their names not being on his roll, for reasons here¬ 
tofore stated. I quote trom page 5 of said memorial the following: 


Senator Baker thereupon arose, and, before the result of the vote had been 
announced, asked permission on behalf of himself, 14 senators, and 65 members 
of the house of representatives, to vote for United States Senator, but the president 
refused to permit him or any of the persons for Avhom he had asked permission to 
vote, and made the following announcement of the result: Whole number votes 
cast, 93; of which John Martin received 86; Cobun, 4; Close, 1; Hanna, 1; and 
Snider, 1. 


I am advised that Senator Baker did not arise and ask leave either 
for himself or for other persons to vote until after the president of the 
assembly had declared the result of the election, and that the presi¬ 
dent informed Senator Baker at the time that his request to vote came 
too late, the result having been already announced. But, if the state¬ 
ment made in the memorial be correct, the fact remains, and is not 
controverted by any thing in said memorial, that 25 senators were 
present and voting, and that 59 duly elected and qualified representa¬ 
tives, including Messrs. Rosenthal and Wilson, were also present and 
voting. Had Senator Baker and the other 14 Republican senators voted 
on roll call, or had they been allowed to vote upon their request, their 
votes would not have changed the result of the election; nor, if the 62 
Republican members of the house had voted, either on roll call or on 
request, would their votes, either alone or in connection with the 15 
non voting senators, have changed theresult. These 15 non voting Repub¬ 
lican senators, and the 62 nonvoting Republican representatives consti¬ 
tute the “77 members of the Kansas legislature,” whose memorial is in 
the hands of this committee. If Messrs. Chambers, of Comanche, and 
Meagher, of Leavenworth, the 2 nonvoting Democrats, be added to the 
77 nonvoting memorialists, making 79 in all, they would not together 


have constituted a majority of all the members elected to both houses, 
being 4 short of the number necessary to constitute a “joint assembly’ 7 
under the act of 1866, and their united vote would not be sufficient to 
elect any person a senator, unless at least 4 other members had been 
present, and the whole 83 members had voted in the same joint assembly. 

At page 5, of said memorial, occurs the following singular para¬ 
graph : 

Fifteen senators and 62 legally elected members of the house of representatives 
protested against his ruling, and against the declaration of the result, claiming that 
of the 86 votes cast for John Martin 9 were by men who were not members of the 
house of representatives, and that John Martin received but 77 legal votes, and 
that 77 was not a majority of the 160* legally elected members of the senate and 
house of representatives, who were present and participating in the joint assembly 
and insisted that there had been no election; but the Hon. Percy Daniels, presiden, 
of the joint assembly, refused to recognize the protest of the said members, and thet 
said Percy Daniels then, upon motion, declared the joint assembly dissolved, and 
abandoned the chair. 

I am advised that neither “ 15 senators”, nor “ 62 legally elected mem¬ 
bers of the house” protested against the ruling of the president of the 
joint assembly, nor against his declaring the result of the election, 
until after the joint assembly had adjourned and 25 of the senators, with 
the lieutenant-governor and other officers of the senate had retired from 
the hall of the house. Wliat appears at pages 6 and 7 of said memo¬ 
rial occurred after the adjournment of the joint assembly, and after the 
senators and officers of the senate had retired, as already stated. But 
if such protest had been made before the adjournment of the joint assem¬ 
bly, I apprehend that the result of the election would not and could not 
have been changed thereby. 

What grounds, then, do the memorialists present against my title to 
a seat as Senator'? It would seem from the statement in the last para¬ 
graph quoted above from their memorial that they entirely misappre¬ 
hend the rule required by the act of Congress of 186r. The memorialists 
say: “That John Martin received but 77 legal votes, and 77 was not a 
majority of the 160 {165) legally-elected members of the senate and 
house of representatives who were present and participating in the 
joint assembly.” The memorialists seem not to understand that while 
it requires “amajority of all the members elected to both houses, being- 
present and voting,” to constitute the “joint -assembly,” that a majority 
of such joint assembly is sufficient to elect a Senator. Of course 77 
legal votes is not a majority of all the members elected to both houses; 
but 77 legal votes is largely in excess of a majority of 83, and 83 con¬ 
stitutes a majority of all the members elected to each house. 

It seems to me that upon the facts and figures presented by the 
memorialists themselves, rightly considered and rightly understood, 
that there can be no question of the legality of the election under 
which I claim the right to a seat in the Senate"of the United States as 
a Senator from the State of Kansas. 

It is proper for me to notice the claim presented in the memorial of 
the 77 members, at page 6, that there had been no election for Senator. 
It is clearly stated in said memorial, at page 5, that Lieutenant-Gov¬ 
ernor Daniels, after announcing the result of the election, “declared 
the joint assembly dissolved, and abandoned the chair.” It was then, 
and after the lieutenant-governor had “abandoned the chair” (p. 6), 
that Senator Baker offered the preamble and resolutions, reciting 
“that persons not members of the legislature” had been permitted to 

^ This is evidently a misprint for “165.” 



63 


\°te, and that lo senators and 62 members of the house had been 
( emec tie nght to vote,” and resolving’ that the nonvoting senators 
and representattves would “continue to vote for a Senator in Congress 
o 11 the vacancy,’ etc. And the memorial thereupon states that 

tT’+i•. ou £ lass was elected president of the joint assembly, 
arid that said joint assembly adjourned over until noon of the next day. 

le memorial then gives what purports to be the proceedings of said 
joint assembly ’ held on January 26, at which certain other “where¬ 
ases and “resolutions” are said to have been adopted, declaring, 
among other things, that u if the 77 members had been permitted to 
vote*there would have been no election of a United States Senator,” 
and declaring further “that there lias been no election of United 
States Senator,” etc., and authorizing the appointment of a committee 
by Mr. Douglass “to prepare a formal statement and emphatic protest 
to the Senate of the United States.” 

All this is put forth seriously as if constituting matter both grievous 
and wrong. The memorialists had no right to complain because they 
did not vote. The 15 senators and 53 of the 62 representatives were 
duly called twice in the joint assembly presided over by the lieutenant- 
governor, once to ascertain who were present and once to vote for 
some person for United States Senator. The memorial (pp. 4 and 5) is 
silent as to the first roll call, but at page 5 it shows the second roll call 
and admits that the memorialists failed to respond. No reason is given 
why the 15 senators did not respond, but it states that the 68 members 
of the house did not respond “becausethey did not recognize Mr. Rich 
as chief clerk ? ” nor did they recognize the legality of the “body of 
which he was an officer.” Are these reasons worth considering? If 
they are, then it may be proper to say that, there being no secretary of 
the senate present in Mr. Douglass’s joint assembly, Senator Brown 
called the roll of senators; and the memorial and the Douglass house 
journal both show that the supposed joint assembly over which Mr. 
Douglass presided contained only 77 member, and that for want of “a 
majority of all the members elected to each house” there was no legal 
joint assembly and the 77 votes said to have been cast for Mr. Ady 
w r ere ineffectual for any purpose. But a singular statement appears 
at page 7 of said memorial, which may be briefly stated thus: 


The undersigned,(77) members of the senate and house were present in representa¬ 
tive hall on January 25 and demanded a right to vote in the joint assembly presided 
over by Hon. Percy Daniels and wore refused, but did vote for Hon. J. W. Ady 
after said presiding officei' had abandoned the chair ; * * * and we submit that the 

result of the vote in the joint assembly is as follows: 



Senators 

voting". 

Members 
of house. 

Total 

members 

voting. 

.Tnhn Martin . 

24 

2 

26 

J. W Adv . 

15 

62 

77 

AT W. Cobun .. 

1 





Total . 

40 

64 

107 



The arithmetic of the memorialists is no better than their arguments. 
It is difficult to see how 26 and 77 constitute “ 107,” but the memorial¬ 
ists so state it. 

But the table appearing at page 7 of the memorial, and above sum¬ 
marized, is deceptive. There w r as no joint assembly or pretended joint 
assembly in which all of the 40 senators voted. In the legal joint 


























64 


assembly, presided over by the lieutenant-governor, 25 of the 40 sena¬ 
tors voted as hereinbefore stated, and the other 15 remained silent. In 
the pretended “ joint assembly,” presided over by Mr. Douglass, no 
senator voted for Mr. Martin and no senator voted for Mr. Cobun. In 
the joint assembly, presided over by the lieutenant-governor, the votes 
of 59 legally qualified and unquestioned members of the house were 
given for Mr. Martin, and none for Mr. Ady. The above table shows 
that in the “joint assembly” presided over by Mr. Douglass, 62 mem¬ 
bers of the house voted for Mr. Ady and that two voted for Mr. Martin. 
The Douglass house journal shows that there were only 62 votes cast 
by members of the house in that joint assembly, and that they weye all 
cast for Mr. Ady, and it says distinctly that “ Messrs. Chambers, 
Powers, Meagher, Eosenthal, and Wilson were absent or not voting.” 
Of those so absent Messrs. Eosenthal and Wilson had voted for Mr. 
Martin in the joint assembly presided over by the lieutenant-governor, 
and Messrs. Chambers and Meagher are the two Democrats who 
declined to vote in the joint assembly which elected Mr. Martin. Said 
journal also shows that immediately upon Mr. Douglass being elected 
as president of the “joint session” the roll was called—that of the 
senate by Senator Brown, when 15 senators only responded, and that 
of the house by Chief Clerk Brown—and that only 62 members of the 
house responded, making the total number present 77; and it also 
shows that on that roll call of the house “Messrs.Chambers, Eosenthal, 
Meagher, Powers, and Wilson were absent or not responding” to the 
roll call. So that at no time, as shown by the Douglass house journal 
itself, were there present in Mr. Douglass’joint assembly more than 77 
members all told. 

I respectfully submit that upon the documents already submitted to 
your committee and upon well-settled rules of law governing election 
of United States Senators, as well as upon principles of justice and 
right, that my right to a seat in the Senate ought not to be disturbed. 

Bespectfully submitted. 

Jno. Martin. 

Topeka, June 12, 1893. 

8 . 

Ordered , That Mr. Ady be allowed to place before the committee, in 
the first instance, in the shape of official records or ex parte affidavits 
such proofs as he chooses to submit within thirty days after January 
1, 1894 5 that Mr. Martin be allowed thirty days thereafter to submit 
additional evidence; that all further evidence on either side shall be 
submitted within fifteen days later, and that thereafter briefs on both 
sides shall be submitted within ten days. 

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